Affirmative Action Counteraction Requires Philanthropy to Step Up
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The Supreme Court’s decision to limit affirmative action demands a counter-reaction from funders. Photo: Tada Images/shutterstock
The U.S. Supreme Court’s recent decision in SFFA v. Harvard and SFFA v. UNC limiting the use of affirmative action in college and university admissions has set off a chain reaction — and it requires an equally powerful counteraction from philanthropy.
At a time when our country should be looking to expand solutions to ensure that diversity remains a priority, alarmingly, we seem to be trending in the opposite direction. With the proverbial ink from the decision barely dry, attorneys general from 13 states threatened to sue Fortune 100 CEOs for their diversity, equity and inclusion efforts. Four days later, U.S. Senator Tom Cotton (R-Arkansas) piled on, advising top law firm managing partners to preserve their documents in anticipation of “investigations and litigation” if they dared continue diversity initiatives. The American Alliance for Equal Rights has filed lawsuits challenging diversity fellowships at law firms as racially discriminatory. AAER also has sued an investment fund for encouraging venture capital funding for women of color-led businesses.
In the name of “eliminating all racial discrimination” — quoting Students for Fair Admission (SFFA) — these challengers seek to intimidate leading firms and corporations into abandoning long-standing, well-considered legal efforts to address ongoing racial barriers.
Make no mistake: We’re seeing the first salvo in a new skirmish in the culture war, coming from a well-resourced conservative movement. Even the most cursory of searches uncovers donations that boggle that mind. For example, the Marble Freedom Trust launched in 2020 with a $1.6 billion gift from one benefactor. Smaller but still noteworthy, DonorsTrust, a donor-advised fund guided by “ideals of limited government, personal responsibility and free enterprise,” reported distributing about $188 million in 2021. Among its grantees was Consumers’ Research, which is currently soliciting stories of “companies who are going woke in order to distract from bad business practices” as part of its stated mission to “increase the knowledge and understanding of issues, policies, products and services of concern to consumers.” DonorsTrust’s 990 filings indicate that it awarded Consumers’ Research $5.9 million in general operating money — the lifeblood of nonprofits — in 2021.
Funders and philanthropists dedicated to diversity, equity and inclusion need to make their voices heard now more than ever. Thankfully, there are already examples we can point to, including a letter signed by more than 140 philanthropic organizations and individual statements such as the one issued by the William and Flora Hewlett Foundation. We need more funders to speak out, and continue to support existing DEI programs, and more importantly, expand them to build stronger pipelines for people of color to enter professions in dire need of diverse representation.
Take the legal profession. Already there is a historic, unacceptable lack of representation among law students and practicing attorneys, including within public interest law. In 2022, the American Bar Association’s annual profile of the legal profession found that lawyers of color made up only 19% of the total profession, with Black lawyers at only 5% — a number that’s been stagnant for 10 years. The paucity of Black lawyers means fewer African American law firm partners, corporate general counsel, judges and public interest advocates, where they are sorely needed.
In 2022, the legal needs of people in low-income communities went largely unmet. With attacks on formerly well-settled rights on the rise, increasing the number of public interest lawyers is even more critical to ensure every individual has equal access to justice. Additionally, people seeking legal counsel deserve to see themselves in their attorneys. As a former Department of Justice line attorney, I recall how Black Mississippians seeking voting rights protections sighed with relief upon seeing me. My presence at the polling site spoke volumes: that the DOJ took their concerns seriously, that I would ensure their ballots would count, that the system worked for them, too. I was proud to serve my country and those voters, but for too many young people of color, opportunities leading to law school are shrinking, depriving their communities of necessary human capital and our nation of wisdom that could solve our most taxing problems. Representation matters — especially in public interest law.
Increasing diversity in the legal profession requires a concerted effort by law schools, law firms, other legal organizations, and — critically — funders. We’ve seen how philanthropy’s substantial and strategic investment in voting rights litigation resulted in a victory in the U.S. Supreme Court for Alabama’s Black voters. The same commitment to collaboration and resources is necessary to support students of color who are passionate about the legal system and public service. Expanding resources for DEI programs, building DEI into funding portfolios, and funding strategies that promote DEI are essential at this critical moment, as is an investment in the social justice movement to beat back the massive effort to reverse hard-fought progress.
Focusing support on diversity and inclusion programs, as well as nonprofit organizations doing crucial equity work, is essential to maintain important social justice gains, realize the nation’s creed of equal justice for all, and ensure we benefit from the full array of talent that exists in all corners of the nation.
Verna Williams is the CEO of Equal Justice Works based in Washington, D.C.
