5 WISE Tips to Navigate Diversity and Inclusion in a Post-Affirmative Action Landscape
In the evolving landscape of diversity, equity and inclusion (DEI), staying updated on legal developments is critical. In June 2023, the U.S. Supreme Court struck down affirmative action in higher education, stating that these institutions can no longer use race as part of the decision-making criteria for admissions. While this move is specific to higher education, the potential implications for nonprofit practices and philanthropic initiatives are currently being tested in court.
WISE recently co-hosted a webinar, Navigating the New Era of Inclusion and Belonging in a Post-Affirmative Action Landscape, with Kanarys, a company that helps create inclusive workplace cultures. Panelists from WISE and Kanarys discussed key takeaways from the ruling and what nonprofits should do next as they continue to strive for inclusion, belonging and meaningful impact.
Impact of the Supreme Court Ruling
To avoid misunderstandings about the Supreme Court’s ruling, let’s clarify what it entails and its potential impact. Nearly a decade ago, Students for Fair Admissions, Inc. (SFFA) filed separate lawsuits against Harvard College and the University of North Carolina (UNC), arguing their admissions programs violated Title VI of the Civil Rights Act of 1964 (Title VI) and the Equal Protection Clause of the Fourteenth Amendment. Higher education operates under Title VI, which prohibits discrimination based on race, color or national origin in federally funded programs.
On June 29, 2023, the Supreme Court’s decision in SFFA v. Harvard and SFFA v. UNC ended the use of affirmative action in college admissions. While the ruling is specific to higher education, it has drawn attention to existing employment and contract laws that are applicable to all types of businesses.
All businesses are subject to Title VII of the Civil Rights Act of 1964, a federal law that protects employees and job applicants from discrimination based on race, color, religion, sex and national origin. The prohibition against using race or gender in employment-related decisions under this law has remained unchanged since 1964.
The Supreme Court ruling also brought attention to contract laws, which ensure fairness and mutual agreement in legal relationships among businesses. Grant awards, which may be viewed as a contract based on the terms of agreements between funders and grant recipients, are under closer scrutiny because of the affirmative action ruling, which references contract law (Section 1981 of the Civil Rights Act of 1866). Grant award decisions may lead to perceived zero-sum scenarios in which one race or ethnic group is benefited at the exclusion of another. If a grantor favors an organization based on the racial demographics of those receiving services, it may face litigation for limiting opportunities based on racial or ethnic demographics. This heightened scrutiny may influence funding decisions as funders become more cautious about the possible legal risks of race-based funding and programming.
American Alliance for Equal Rights v. Fearless Fund is a notable case relevant to the philanthropic community. The American Alliance for Equal Rights (plaintiff) sued the Fearless Fund, a venture capital firm with a grant-making foundation, over its Fearless Strivers Grant Contest, which aims to increase racial and gender equity by supporting Black women entrepreneurs. The plaintiff argued that by restricting applications to Black women, the Fearless Fund was discriminating against other races. This case is considered one of many test cases to see how far the courts will go to limit programming that supports racial justice efforts to level the playing field for underserved populations. On June 3, 2024, the Eleventh Circuit Court of Appeals denied the Fearless Fund’s appeal of the lower court’s decision that would shut down their grants program for Black women entrepreneurs. Fearless Fund’s legal team continues to evaluate all options for fighting the lawsuit.
You may be asking, what does this have to do with my nonprofit? There is reason to pay attention. Funders have asked some of our clients applying for grants to change narrative information that appeared to be focused on race-based decision-making for program services. In these cases, the funders worked with our clients to revise the proposals to reduce legal risk and proceed with the grant request. Unfortunately, organizations that don’t have strong relationships with a funder may not have this chance. In these cases, a funder’s concerns about race-based programs may lead to an immediate decline with little explanation or chance to discuss.
What can you do to minimize the chances you will be denied funding during the post-Affirmative Action era?
Tip #1: Stay the course on equity efforts
Initiatives aimed at promoting gender equity or combating the impacts of racism are not illegal as business practices. The key is to ensure that programs do not restrict access based on race or gender, but instead create opportunities for inclusion of underserved populations. For instance, programs aimed at supporting a specific demographic may minimize legal risks by technically being open to all but designed to support a specific population due to their status of being underserved, under-represented or historically disenfranchised in some way.
Tip #2: Present evidence to support your claims
It is important to back up equity-based assertions with evidence. Cite supporting statistics, census data and research to justify your efforts to target a specific population for services. At WISE, we talk about historical racist practices of segregation, redlining, Jim Crow laws and many other efforts that were used to purposely disenfranchise populations, creating broken systems that continue to make it harder for some individuals to access opportunities, wellness and wealth.
Tip #3: Honor the assets and strengths of clients
Saviorism, while well-intentioned, is outdated and unwanted. Instead, walk alongside your clients as peers, incorporating their feedback into program initiatives and updates. Ensure that they have a seat at the table in organizational decision-making, create feedback loops and empower their agency to create their own success. When writing a grant application, consider how your clients would feel if they were to read it. Use affirming language that dignifies and values the individuals you serve.
Tip #4: Continue to strive for diversity and inclusivity of staff and volunteers
While it has always been illegal to use race as a factor in hiring decisions, having a staff that can relate to those being served can be essential in effective program services. So, what can you do to ensure that your staff is reflective of those you serve and/or have lived experience with your mission? Evaluate your job posting and candidate outreach efforts to ensure they target the population you want to apply and that your interview and hiring practices are welcoming to all populations. It is not illegal to conduct outreach efforts that encourage individuals from the communities you serve to apply for open positions. It is only illegal to hire someone based on their race or gender.
Additionally, it is not illegal to recruit board members who reflect the perspectives of individuals being served by the organization. You can use race and gender to make decisions about board composition. Consider utilizing a board matrix to recruit board members with diverse perspectives, including individuals who have been beneficiaries of your programs or services.
Continue to tell funders about your DEI efforts and how your staff and board are reflective of the individuals you serve. Explain why that is important to the work that you do.
Tip #5: Do the work
It's important to continue efforts toward diversity and inclusion. While some might think about cutting DEI programs to reduce legal risk, this can actually harm the organization’s brand and mission. Instead, work with legal counsel to ensure that programs meet legal requirements while still achieving the organization’s goals. This includes finding ways to minimize risk without eliminating initiatives, as doing so can cause backlash from employees and damage the organization’s reputation. The right legal advice ensures resistance is handled effectively while keeping a commitment to DEI efforts.
Collaborate with experts in labor law, human resources, workforce analytics and nonprofit management to navigate DEI strategies effectively. These experts provide valuable guidance, ensuring initiatives are intentional, aligned with values and legally sound.
We also encourage you to conduct a DEI-focused organizational audit. Conducting an audit helps to ensure alignment and mitigate risks, protecting the integrity of your DEI efforts.
There may still be misconceptions or outdated practices within your organization, and it is a great opportunity to invest in training and tools for those involved in the hiring process and people management.
By staying informed, conducting thorough audits, leveraging expertise and fostering open dialogue, you can navigate this new era of inclusion and belonging while making meaningful impacts within your communities and workplaces.
For further support and resources on creating inclusive workplace cultures, we encourage you to connect with Kanarys by visiting kanarys.com.