Funders Launch Initiative to Provide Legal Education and Defense for Racial Justice Organizations
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Recent Judicial decisions have racial justice funders and advocates rattled. Photo: Brandon Bourdages/shutterstock
The Supreme Court’s decision to effectively end affirmative action in college admissions last year has put philanthropic funders on guard, and is having a broader impact on race-conscious programming across the country.
Last week, a U.S. court ruled against Fearless Fund, an organization that invests in businesses led by women of color, arguing that its work is discriminatory. The court cited the Civil Rights Act of 1866, a statute which prohibits discrimination on the basis of race. The lawsuit is part of a recent spate of attacks, legal and otherwise, against racial justice and DEI initiatives.
For organizations working to advance civil rights and racial justice, these lawsuits present a significant danger. But in California, a group of funders and legal experts are looking to provide such organizations with guidance on how to move forward. Led by the California Black Freedom Fund, the Legal Education, Advocacy, and Defense (LEAD) for Racial Justice Initiative will provide nonprofit organizations and foundations with the legal education, resources and tools they need to understand and navigate the legal landscape following the Supreme Court’s anti-affirmative action ruling.
LEAD is backed by major California funders, many of which have also put money behind the California Black Freedom Fund itself, which set off in 2021 to raise $100 million in five years to support Black-led movement-building and related work.
Funders for LEAD include the Akonadi Foundation, California Community Foundation, East Bay Community Foundation, Evelyn and Walter Haas Jr. Fund, Latino Community Foundation, Rosenberg Foundation, Silicon Valley Community Foundation, The California Endowment, The James Irvine Foundation and Weingart Foundation, among others.
The initiative will provide legal analysis and answers to questions organizations may have about the anti-affirmative action ruling and its impacts, as well as in-person and virtual trainings, and opportunities to request pro bono legal support. Its legal partners are Adler & Colvin, Lawyers’ Committee for Civil Rights Under Law, Mexican American Legal Defense and Education Fund (MALDEF), Public Counsel, and Lawyers Committee for Civil Rights of the San Francisco Bay Area.
“Knowledge is power. It’s really the first step in being able to defend yourself and really navigate the terrain,” said Marc Philpart, executive director of the California Black Freedom Fund. “So we wanted to provide [our partners] with knowledge and information that they could use to be in strategic conversation with their staff, with their board [and] with their funders about how this moment was being shaped. We created LEAD with the idea of being able to put people in a position of power… so that they’re navigating this moment in a way that is emboldening.”
After the Supreme Court issued its decision last year, conversations have taken place in philanthropy about the ruling’s implications, but community partners remain afraid of what might happen to their organizations if funders hesitate to fund racial justice work, fearing legal ramifications.
“A lot of our grantees were wondering what the decision meant for them and their programs, and then more broadly, for racial equity and civil rights in our state and in our country,” said Kendra Fox-Davis, chief program officer at the Rosenberg Foundation. “We wanted to be part of countering the chilling effect that was starting to happen in philanthropy that we felt could discourage and hinder racial justice… We felt like there was an urgent need to provide education and legal tools to foundations and grantee partners.”
Attacks on organizations and funders
Although the Supreme Court’s ruling is specifically tied to higher education, opponents of affirmative action have weaponized the decision to attack DEI and racial justice programs, as well as grantmaking that seeks to remedy discrimination, Fox-Davis said.
The Fearless Fund lawsuit is only one example of these efforts. In San Francisco, for example, right-wing groups have filed lawsuits against the city’s Guaranteed Income for Trans People (GIFT) Program, which gave $1,200 a month to 55 low-income trans people for up to 18 months. The program launched in November 2022 and is set to end in July of this year. Conservative groups have also filed lawsuits against the city’s Abundant Birth Project, which offers $1,000 a month to Black and Pacific Islander mothers and pregnant individuals during and after pregnancy.
“Every day across the state, people’s grants are being called into question,” Philpart said. “The very crucial and precious lifeblood of social justice work and racial justice work, in particular, is being questioned not only by philanthropy, but by government actors who are fearful… People are taking it as a sign that anything focused on race is not allowable.”
He added that the Fearless Fund decision underscores the need for a place-based strategy around legal education and advocacy to protect and expand the right to further racial justice programming across the nation, which is what LEAD is seeking to do.
The attacks against racial equity and justice funding come on the heels of the national reckoning with racial injustice and a broader movement against racial education that last year saw conservative politicians introduce a spate of laws aimed at restricting the teaching of critical race theory. Funders have also borne some of the brunt. The Gates Foundation, for example, has been recently criticized for its racial equity funding, with right-wing groups arguing that the work is “unlawful” and an “assault on… nondiscrimination laws” — the same argument made in the Fearless Fund lawsuit.
“Over the past decade, what we’ve seen in the field is an increased commitment to undoing the harm caused by structural racism and increased commitment to racial justice,” Fox-Davis said. (See Inside Philanthropy’s analysis of racial justice pledges made after George Floyd’s death.) “We also know that when momentum and public spotlight moves away from an issue, that can have an impact on philanthropy, and some of our organizations have been seeing a retreat from funding the important racial justice work that they do, and were concerned that these cases could exacerbate that.”
She added, “That’s why we really want to make sure that we’re partnering with other foundations to make sure that we all understand the legal landscape, that we share that information with our grantees, and that we’re able to work together to ensure that instead of retreating from racial justice, we are doubling down our commitment to it.”
“The law has not changed in regard to what philanthropy can do”
In addition to its work in California, LEAD is also thinking about how it can support organizations and funders in other states who have expressed interest in replicating its work in their own communities. “We want to be able to meet that demand,” Philpart said. “We are very sensitive to the fact that what we’ve developed is something that people want. They want access to the tools. They want access to the training… But one of the more surprising things is that people just want to be in community. They want to be in constant conversation and dialogue around these issues in ways that allow them to learn, to grow, to strengthen their resolve and to be able to act in ways that are bold. And so we’ve found that by creating community, we’re creating a strength that we’ll need for further actions in the future.”
Thus far, LEAD’s virtual trainings have engaged more than 400 leaders. The initiative is working to expand its training series to other demographics, starting with funders who have expressed concern about what the affirmative action decision and other legal attacks mean for their programming.
“For all intents and purposes, the law has not changed in regard to what philanthropy can do to invest in racial justice, and we shouldn’t act as if it has. Acting as if it has changed means they have won, but they have not,” Philpart said. “In fact, more and more people are coming to the table saying that they are recommitting themselves to racial equity and racial justice in large numbers.”
The California Black Freedom Fund itself, which was initially meant to be a five-year initiative, recently announced it was fundraising for an endowment to establish itself as a standalone foundation. And to cite another example, the Democracy Frontlines Fund, a donor collaborative established to fund Black-led grassroots organizations and originally envisioned as a three-year effort, also announced its work will be extended for an additional three years.
“I am excited about the number of funders who are taking up the charge to do more around racial justice in a period where people are sowing fear and division and trying to stamp out some of the important work that’s been done over the past 20 to 30 years of philanthropy,” Philpart said.
