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Show Up and Stay: Why the South needs philanthropy to lead in the movement for racial equity

Affirmative action has long been the target of conservative activism, but in higher education, it was the one reliable backstop: a glimpse of hope that, despite the systemic disadvantages that communities of color face from birth onward, they could access all the opportunities a college education offers. In the classroom, in turn, learners of all kinds could learn from peers with different backgrounds to their own, enriching the educational experience for all.

But, in Students for Fair Admissions, a Supreme Court case involving Harvard and UNC-Chapel Hill, Chief Justice John Roberts found that the desire to construct a racially diverse student body does not justify the use of race in college admissions. With the stroke of a race-neutral pen, the Chief Justice put colleges and universities on alert: extending opportunity specifically to students of color is not within the prerogative of a college or university.

As educational institutions adjust their admissions policies, the Supreme Court’s decision is reverberating throughout the country. Conservative activists have launched their next barrage of litigation against the Fearless Fund, a venture capital group that provides seed funding to start-ups founded by women of color, and two international law firms that offer summer associate positions to law students of color.

Institutions across the public, private, and nonprofit sectors are asking what’s next.

On October 3, MDC hosted a webinar titled “What the SCOTUS decision on affirmative action means for philanthropic work in the South” to discuss the impact of the Supreme Court’s decision on philanthropy and the nonprofit sector. MDC’s President and CEO, John Simpkins, moderated a discussion with Edward Chaney, an attorney specializing in nonprofit law, and Dr. Laura Gerald, the President of the Kate B. Reynolds Charitable Trust. Their discussion ranged from the direct legal implications of Students for Fair Admissions to the role of philanthropy in advancing civil rights throughout history, to the path forward for all those seeking to confront and dismantle the South’s entrenched inequities. This moment, Chaney and Gerald agree, calls for philanthropy to reach back and look forward: reach back to philanthropy’s history of fighting for civil rights, and look forward to a South and a nation rich with opportunity and equity for all.

The conversation began with defining the Court’s decision as well as the related legal cases that have entered the pipeline in the months since. Chaney believes that, while legal questions about the broader implications of Students for Fair Admissions are unanswered, philanthropy has an opportunity to set the terms of the debate in a strategic way. Rather than relying on the 14th Amendment or the Civil Rights Act of 1964, Chaney told the audience, the latest lawsuits against private and nonprofit organizations rely on Section 1981 of the Civil Rights Act of 1866, a Civil War-era statute that prohibits discrimination in contracting. The applicability of Section 1981 to the work of foundations hinges on whether a grant is a form of contract. If a foundation requires grantees to use funds for a specific program or imposes data reporting requirements, the grant in question could be interpreted as a contract. If, in turn, the foundation offers those grants specifically to organizations run by or geared toward people of color, a conservative court may find that Section 1981 has been violated. To avoid these legal debates, Chaney explained, foundations may consider a double down on implementing trust-based philanthropy practices, in which grantors provide general operating support and trust grantees to do the work without requiring detailed deliverables.

But the job of foundations and their legal counsels is not to avoid all risk, the panel asserted—it’s to manage risk while remaining focused on the work. Philanthropy, according to Dr. Gerald, is uniquely positioned for the long haul. To smaller community organizations with limited funding and organizational capacity, philanthropic partners are, in many ways, a guardrail. In a difficult moment like this, she encouraged philanthropy to buckle down and show up for the communities it serves. “If we’re not going to fight these fights, then who is?” Dr. Gerald asked rhetorically. If philanthropy retreats, it will be leaving behind vulnerable communities and the organizations that serve them, surrendering to the forces that seek to obstruct the advancement of civil rights. As one webinar attendee put it, “Philanthropy often considers risk to itself if it does something. It doesn’t consider risk to community if it doesn’t.” In the South, where the needs are high and support often lags, it is mission-critical to the cause of racial equity that philanthropy holds the line.

History shows that from building Rosenwald Schools to the Voter Education Project, philanthropy has long been active in the movement to advance civil rights. Large-scale social movements require something from everyone, whether it’s manpower, strategy, labor, or legal know-how. In places like the South, where systems tend toward inertia, social movements require funding, too. With only 3% of total philanthropic expenditures directed toward the South, the most vulnerable and marginalized communities in the nation undoubtedly deserve more of the sector’s attention. While the conversation may begin with capital, though, it cannot end there.

While the Supreme Court’s dismantling of affirmative action in higher education was, in many ways, a blow to advancing racial equity, it also created opportunities for philanthropy to shift its focus to changing systems rather than just reacting to them. Despite the complicated legal landscape—because of the complicated legal landscape—the South needs philanthropy’s persistence as well as its funding. As Chaney said in his closing remarks, “Somebody’s got to fight this fight.” In keeping with its tradition of front-line justice work, this moment requires philanthropy to fight.

This means that philanthropy must show up and stay. Showing up means showing up with funding, so that vulnerable communities and the organizations that serve them, concentrated in the South, have the resources they need to thrive. It means refusing to retreat during an uncertain legal landscape; communities can’t retreat from the inequities they face, so neither should their funders. Finally, showing up means charging toward the future, adapting to new political environments, and finding new ways to identify and tackle the systemic inequities that keep marginalized communities from advancing. Staying means being immersed in communities with a listening ear to anticipate problems rather than just reacting to them. And then it means seeing solutions through to the end. When philanthropy shows up in the face of challenges and stays the course, it will help usher the South toward a more just, equitable future.

MDC invites you to view the recording of our discussion with Ed Chaney and Dr. Laura Gerald here. For more information about State of the South, our public engagement platform, you can find the webpage here.