Gene Takagi: Possible Implications Of The Supreme Court’s Affirmative Action Decision
The Supreme Court’s decision this summer struck down college admissions affirmative action programs. Yet it may have repercussions for nonprofits around employment, contracts, grants, and other areas. Gene Takagi gives us his analysis. He’s our legal contributor and managing attorney at NEO, the Nonprofit and Exempt Organizations law group.
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Hey, tony, we have possible implications of the Supreme Court’s affirmative action decision. Supreme Court’s decision this summer struck down college admissions affirmative action programs, but it may have repercussions for nonprofits around employment contracts, grants and other areas. Jean Takagi gives us his analysis. He’s our legal contributor and managing attorney at Neo, the nonprofit and exempt organizations Law Group. On Tony’s take two, [00:01:18.61] spk_0:
an old drop [00:01:50.07] spk_1:
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It’s always a pleasure to welcome Jean Takagi back to nonprofit radio. I know you know who he is, but he deserves to have a proper introduction. Jean Takagi is our legal contributor and the managing editor of Neo, the nonprofit and exempt Organizations Law Group in San Francisco. He edits that wildly popular nonprofit law blog and is a part-time lecturer at Columbia University. The firm is at neola group dot com. The blog is at nonprofit law blog dot com and Jean is at GTA. Welcome back Jean. It’s good to see you. [00:02:41.24] spk_2:
Great to see you to tony. Thank [00:02:52.90] spk_0:
you. I just realized uh we both have red T shirts on. We’re matching today. You’re more for, but you bought a jacket over yours. That wasn’t necessary. Thank you. I’m just, uh you know, I’m, I’m t-shirt and bathing suit because I live because I’m on the beach. So I, I don’t, I don’t put a jacket on. I hope you’ll forgive me. My uh my informality. [00:03:04.51] spk_2:
It’s a little cooler here in San Francisco. We’re in the mid sixties today. So, well, [00:03:50.21] spk_0:
not too. Yeah, we’re in the mid uh North Carolina. All right. So we’re talking about the uh Supreme Court’s affirmative action decision and uh the potential for some implications beyond merely college admissions. Why don’t you, why don’t you just set us up with a reminder about that? Uh It was either late June or very early July decision that came out about uh college admissions uh was the um uh the students for fair admissions versus uh the Fellows of Harvard University. And then another case versus the University of North Carolina. So a private university and a public [00:05:35.84] spk_2:
university. Yeah. So um both cases were treated together and it was um in late June so early this summer um where the Supreme Court came down with a holding that basically said that um in higher education admissions um for uh state universities, uh and for private universities that are state actors and essentially probably because of the federal funding that they receive. Um Well, if they use race um in their admissions policies of deciding who can get in, um whether it’s uh a strict criteria or whether it’s a sort of like a plus factor in rating a candidate’s qualifications that is a violation of the Equal Protection Act uh of the 14th amendment. So the Equal Protection Act basically um says that every person is entitled to equal protection of the laws and that act is applicable to, to governments and state actors. And Harvard uh was brought into the case as an example of a state actor. Um And so, you know, some people were asking, well, how does this even apply to nonprofits? And, well, that’s one way that it applied. And it’s a little unclear about whether something like federal tax exemption. Does that make a nonprofit, a state actor in some cases really haven’t seen that yet, but, um, with the Supreme Court, we’re not really sure, um, what the ties are going to be. Um, but there are all sorts of potential applications for nonprofits that, that people are concerned about. And from my perspective, you know, the decision was fairly disappointing but not unexpected. [00:07:45.61] spk_0:
Yeah. And, and to just emphasize what you said, you know, we’re talking about potential implications beyond. So we want to raise people’s consciousness about things to watch out for, uh things to watch out for in the news, things to be aware of conscious of, in your own, in your own work, um possibly in grantmaking or, or grant receiving things like that. So, um, yeah, you know, my, uh lawyers are trained to always be learning. You, you never stop learning as an attorney. My uh law school learnings are sort of quickly being eroded by, you know, when I learned about, uh what I learned about abortion protection is obviously, uh no longer applicable. Uh And what I learned about, uh, discrimination, I remember there were, there was benign discrimination like, you know, uh whatever the fishing license or voting or voting or driver’s license laws are in your state, you know, that’s 16 or 18 or 21 you know, whatever it is, that’s, you know, kind of benign. There’s, there’s this, we’re surrounded by discrimination, there’s just, they’re different types. Some are benign and some are invidious, the, the hurtful kind. And then there’s, there was the, uh, sort of corrective or remedial kind which is what, what was at issue around the use of affirmative action in, in college admissions that, that corrective or beneficial kind. And, uh, uh, I, I saw in the, uh, one of the, one of the blog posts that you did at the, uh, the wildly popular nonprofit law blog dot com. Uh, Justice thomas’ concurring opinion was, uh, oh, no, I’m sorry, it was Justice Roberts, the main opinion, you know, eliminating discrimination means eliminating discrimination, discrimination of all types for all reasons for all purposes. Uh So which is a, you know, a part of the, the holding of the case. So, so has has implications, potential, has potential implications for us. [00:10:14.49] spk_2:
Yeah, and I, I don’t want to diminish just the impact on, on what this decision just if we look at it in isolation for admissions in higher education, um you know, that has tremendous impact because um even Justice Sotomayor said in, in her dissent, ignoring race will not equalize a society that is racially unequal and like that’s really true. So you can take a look at the, the de demographics and, and you, you can see that there are certain bipoc groups that have um less representation in higher education that can result in less uh income and wealth equality down the road. So there are huge implications of this just in higher education. But a lot of our nonprofit organizations or the bulk of them are not in the education space. And even though they may deal um on the peripheral with, with what the impacts of this decision are on higher education, they may have more direct or may be feeling more direct consequences because affirmative action applies as a defense in other types of cases as well, including uh in the employment context and in sort of um contracting uh cases where organizations enter into contracts with different vendors and whether you can, uh say I’m going to base the selection of a vendor specifically on belonging to a particular race. Um And those laws exist, you know, protecting against discrimination in employment and in contract uh making and enforcing before the Supreme Court holding and that Supreme Court holding didn’t change these cases. But affirmative action was used was, has been used as a defense in both those cases, both those type of claims. So there’s the question now, if affirmative action is no longer a defense in some of the higher education and admissions cases, will they be a defense in employment cases and in the contracting cases? So there are implications for this that are unknown yet. But um the trend doesn’t, you know, doesn’t seem good. And we’re seeing organizations and wealthy conservative individuals who really want to challenge these laws across the spectrum. Um Finding cases to attack um organizations including nonprofits and saying we don’t think we’re gonna allow you to do this again. We’re gonna sue you and we’re gonna test it in court and see what happens [00:10:41.28] spk_0:
and how many government agencies a, a, at all levels of government have, uh, you know, advantages for minority and women owned businesses, uh AAA preference. You know, you get a, you get a step up, it’s not the, it’s not the end, all, it’s not the sole factor but you get a, you get a, an advantage if you’re a minority and women owned business, for instance, those, those types of preferences you’re saying are now suspect at, uh, at, at, at best, I think [00:11:29.82] spk_2:
they could be. I mean, so there are specific carve outs, um, in, in the laws that can apply for certain things. But, yeah, you know, even if you know what, if we took justice Roberts at his words, right. That type of program would not exist either. Right. So, um, you know, equal is equal and we don’t pay any attention to historical. Um, uh, we just don’t, [00:11:51.39] spk_0:
we just don’t pay any attention to history. We just ignore what, what’s happened to minorities and, uh, in the country and, uh, we’ll, we’ll just wait, it’s a clean slate. We’ll just start with a clean slate. Everybody’s equal, which is, which is preposterous, you know, given our structures and invidious discrimination in, in seemingly benign places, uh, which are not benign. And, uh, yeah, we’ll just ignore history. [00:12:17.11] spk_2:
All right. I so appreciate how you frame that because that goes directly to sort of like the book banning and the, uh, history textbooks in Florida and all of that as well. It’s the same kind of, um, you know, uh, same type of organizations and, and people who are driving those same sort of claims and, and nonprofits have to be paying attention because they could be on the other side of those claims. [00:12:45.19] spk_0:
Yeah. All right. So let, let’s dig in a little deeper and, and see what uh your, your, your, your concerns are about the potential for uh for problematic areas. Uh Employment, you mentioned employment. What should we, what should we be conscious of, what should we, we be uh looking out for? [00:15:43.77] spk_2:
So, you know, there have been some, some measures by, you know, some organizations that would do things or, or that that would um with well intentioned goals, I think, say, you know, we really would like to have, let’s say a bipoc leader in place. So, you know, uh you know, with the uh succession planning, if our executive director is leaving next year, we would really like to find somebody who is a bi park person to lead this organization because the majority of communities we serve are bipoc communities. And that might be their rationale in saying we’re gonna go out and we’re gonna look for a bio executive director um to be our next executive director if you’re overtly restricting the hiring of an executive director to specific racial categories, that’s a violation of employment laws. So, title, um, six would be those that are, you know, governmental agencies, title seven would extend out to private employers, including for profits and nonprofits. Um, and there are all sorts of state discrimination laws as well. Right. So if you are, you know, it, if you feel like you can’t say I’m only gonna hire a white executive director, you know, if that feels wrong, you probably can’t just say I’m going to hire a black or a bipoc executive director, sort of by the same token. So, um, that is something that’s just built into anti discs laws. The idea was to help those who are underrepresented and marginalized, um, from suffering uh, to prevent them from suffering from such discrimination. But, you know, some people have called it reverse discrimination now, but those, you know, those same principles still apply, those laws still apply. So if you restrict your hiring and make it a qualifying factor to be, you know, a member of a certain race that would be illegal if you use it as a plus factor, that may be illegal. So saying, well, all things being equal, we’re gonna hire the person of a certain race. So, you know, that’s kind of where, you know, there are some affirmative action defenses in there, um, where we are trying to correct certain systems that might be internal or they might be, um, the product of, of historical, um, problems. Um, and there were affirmative action defenses allowed in that, but I don’t know how strong they’re going to, to be able to, to hold up in light of this opinion. Um, we’ll have to see how it gets tested because it’s, it’s definitely not the same as university admissions. Um, but they’re both, you know, um, facing kind of similar pressures from, from some of the conservative groups who want to attack that as being discriminatory. So we’ll see how that goes in the employment context. But that let me stop there, tony and see if you have any thoughts about it. [00:16:35.01] spk_1:
It’s time for a break. Donor box quote. We’ve seen incredible results with Donor box in the last year. We’ve boosted our donations by 70% and launched new programs in literacy, health, child care and tailoring for our girls. That’s Jennings W founder and executive director of Uganda 10 18. If you’re looking for a fast, flexible and donor friendly fundraising platform for your organization, check out donor box donor Boxx dot org. Now back to possible implications of the Supreme Court’s affirmative action decision. [00:17:24.60] spk_0:
This could apply to board membership too. It might be a very admirable goal because you serve a bipoc community. So you want your CEO and maybe other senior leaders and your board to be reflective, to be representative of the folks that you’re serving in your community. So it, it, it, it, it’s very it’s, it’s advantageous, it’s, it’s admirable. Um You wanna, you wanna empower folks uh who are among those? You’re, you’re helping? So how do you, how do you then frame this so that you’re, I don’t know, your, your board minutes, your, your board transcripts are, are not uh are not used as evidence against you. [00:20:16.30] spk_2:
Yeah. So, um you raise some great issues. The first um is um board membership and saying, hey, what if, what about asking for only bipoc board members or black uh persons who identify as black as board members? That’s what we’re looking for now because our board is all white. Um Can we do that? And you have to be careful of tokenism, of course. But um there’s nothing in the laws, any discrimination laws that would prevent that from happening so long as board members are not employees, right or under contract with the organization. So the any discrimination laws are specific to employment. Um Yeah, and contracting, at least the ones we’re talking about today and I don’t know of any that um refer to sort of volunteer board positions. Um that would be protective of that. But um kind of what else you were um talking about is like, well, not all is lost and it’s not like, ok, we’ve got this decision, we’ve got these laws and we can’t get to um solving some of our problems, let’s say our, our white um managerial and executive staff were 99% white males, you know, for us to look for hiring for a little bit of diversity would seem to make sense. Um, but if you tell us, we can’t use it as a plus factor, we can’t use it as a requirement of our next hire. Really hamstrings us. So what can we do? And so the all is not lost theory is saying, well, look to other things. So what you can do is you can encourage applicants who are, uh who identify with particular race groups. If that’s what you want to do, you can encourage them to apply, you can make sure that you’ve got internal systems that ensures that they’re not going to be tokenized. Um, you are going to uh perhaps recruit in areas or from other sources that um uh provide more candidates um that represent the, the groups that you want. So all up until saying you must be of this race group or ethnic group to be considered eligible to be and a higher or we’re gonna give you, uh uh a plus factor where we’re gonna consider your application more attractive because you’re a member of a race group solely for that reason. That’s the problem. But in the admissions case, um in, in the Supreme Court case, they, the, the majority opinion said, hey, guess what? You can’t say race is the factor. But in the admissions essay, if you talk about character that was um shown in dealing with problems that you had specific and [00:20:24.34] spk_0:
now you now on the individual level, [00:20:27.38] spk_2:
right? So [00:20:28.33] spk_0:
not the, not the, not the race or community level, [00:20:31.37] spk_2:
although race obviously played a factor [00:20:34.50] spk_0:
in that individual’s life. Right? But exactly, and you can run the level, [00:21:57.18] spk_2:
you can use that as criteria. So some people say, well, and the, the the majority holding was also clear that hey, you can’t use that as pretext and just say, write whatever you want. And, you know, it’s really just about race, but it, you really ask them to, to, to write something about themselves and if they want to include something about their race and what they’ve, you know, um overcome uh because of discrimination, past discrimination, that may be evidence of character that you can use in your uh in your process. So while that’s not a really elegant solution, and um you know, you can use socioeconomic factors, for example, in the admissions uh policies. Um that’s not exactly the same as race and we’re, you know, trying to deal with race. If that’s what we’re left with, we, we still can use those tools. So, um again, you can use tools and other strategies to ensure that you do get a diverse pool. And that may allow you to find the most, you know, um person based on other characteristics that ends up being somebody um who belongs to a race or ethnicity that you really wanted to, to have in that position in order to um further your de I goals, [00:22:00.80] spk_0:
anything else with uh employment gene? [00:22:26.20] spk_2:
Um I would just say employment is probably sort of the biggest risk area. So just be for, for organizations even again, well intentioned and trying to deal with historic injustices, be very careful in the employment area. So, um you know, to the extent you can um try to get legal help, an employment lawyer. And, you know, for those who are in cities that have bar associations with, um you know, volunteer legal services programs, talk with them because I think that this may be a popular area for a lot of local bar associations to provide some, some pro bono counsel. [00:22:48.21] spk_0:
We talked a little about contracts and, uh and I, I know you have concerns about uh grantees and, and grant tours as well. Uh uh around contracting uh around whether these are, in fact, contracts can we, can we move to, we move to that arena? Yeah. [00:25:10.46] spk_2:
And, and so, um contracts in general, um all nonprofits enter into contracts, right? Or just about all nonprofits enter into contracts. So the law, um which is uh the federal law anyway, and civil rights laws referred to as section 1981. Uh and section 1981 generally prohibits discrimination in making or enforcing a contract. And that includes any, you know, enjoying any terms uh of a contract as well. So, if you were to again, similar to the employment contract, say we will only hire a vendor if they are a member of a specific ethnicity or race, that’s gonna be in violation of 1981. So probably for, for most people, that kind of makes sense. But we have seen, you know, especially, um I I in the last few years as our social justice efforts have have risen with publicity of like some highly charged events um uh that have been um so terrible. Um uh We have seen movements that said, hey, we really want to increase sort of how we’re contracting out with diverse vendors as well, not just employees. And so people have been saying things like, you know, let’s contract out with more bipoc individuals or more women owned businesses or, um you know, and they’ve been looking at different ways to sort of increase their de i efforts in uh establishing vendor relationships. Um And that’s something now that you have to be very careful about as well. So again, no, just like as in, in the employment context, you can’t have a requirement um or even a plus factor of, of, of saying, you know, if you’re a member of a particular race, then you don’t qualify for this contract or you will not, you, you will be dis preferred for, you know, reasons of, of selecting uh a vendor for, for this contract. Um So how does this fall in respect? I just [00:25:38.88] spk_0:
before you before you make your, your follow on point. But I just want to remind folks that section 1981 is by no means new. This is Reconstruction Era. Yeah, 18 65 or four or something or probably 55 or 18 fi fi 18 65 or 66 was section 1981 to give freed slaves the all the benefits of contracts and, and, and this is the, the statute even says all the benefits that white people enjoy something like that. It’s in the, it’s in the text of the statute. So this is not nothing new is my point. [00:28:16.56] spk_2:
Yeah. Um So, well, over 100 and 50 years old now. Um And it’s something that, that you have to pay attention to, again, affirmative action has been used in the past as defense um in 1981 claims, but we’re not exactly sure how that’s gonna pan out, but I, I wanted to give you a specific example because we talked about it or you alluded to it in the beginning about grant agreements. Um And so as lawyers, we kind of learned like what a contract means, right? And it basically is, there are more than one party to a contract and they agree, they make some mutual promises and they each provide each other with some sort of value. Lawyers call it consideration that goes back and forth. And if you have those elements, then you’re in a contract So the question now is, what is a grant, is a grant agreement or contract? Is it two parties? Yes. Are they mutually agreeing on a bunch of terms and things? Yes. Now, is there value being exchanged on both sides? Now, that’s where there’s an issue. So most people think of a grant as a gift, right? We even filed it in our nine nineties. We, we lumped them all in as gifts and grants and donations. And so, uh if a gift, if it’s a gift and there’s not value coming back, then maybe it’s not a contract because there’s not that equal or it doesn’t have to be equal, but there’s not that exchange of value. Um On the other hand, there are like provisions in grant agreements that say, well, you must do this with the grant monies and you must give us results, you know, show us what the results are of those things. And if you don’t, if you don’t use those monies for those things, you have to return it to us. Um And, and those terms start to look a little bit more like contract terms, right? Are we making a gift for a restricted purpose, which is very valid argument or are we making a payment to get something done? Not for maybe for the funder but getting something done out in the community or producing something because the funder wants that to happen. So really they’re paying for it and you’re delivering it. Is it more like a contract or a gift? [00:29:09.98] spk_1:
It’s time for a break. Kila increase donations and foster collaborative teamwork with Kila. The fundraiser, CRM maximize your team’s productivity and spend more time building strong connections with donors through features that were built specifically for fundraisers. A fundraiser. CRM goes beyond a data management platform. It’s designed with the unique needs of fundraisers in mind and aims to unify fundraising, communications and donor management tools into one single source of truth visit Kila dot co to sign up for a coming group demo and explore how to exceed your fundraising goals. Like never before. It’s time for Tony’s take two [00:30:19.98] spk_0:
long time listeners. Oh, thank you, Kate. Thank you. Long time listeners will remember that this show used to be in a studio in New York City because I used to live stream the show every Friday. I’m pretty sure it was Friday at 1 p.m. from 1 to 2. And then from then I would start my weekend. Uh, and Sam Liebowitz was the producer of the show. He owned the studio where we used to do the show every Friday afternoon. And guests would come to, ideally, they would come to the studio and Sam had the idea of putting some what are called drops into the show and they’re, they’re uh essentially commercials. But for the show, it’s like, it’s like a testimonial. We would call it a, a testimonial for the show. And this is one of the uh early drops that, that we used in a bunch of shows, Sam inserted into a bunch of shows he would put them in, in postproduction. Let’s see if you, uh if you recognize anybody in this [00:30:26.62] spk_3:
lively conversation, talk, trans, sound advice. That’s tony-martignetti Nonprofit radio. And I am his niece Carmela and I am his nephew Gino. [00:30:40.30] spk_1:
How about, [00:30:42.31] spk_0:
can you recognize anybody in that? [00:30:44.18] spk_1:
That is so cute. We sound so tiny. That’s [00:30:50.43] spk_0:
you and your brother and Carmela. I, we have this strange thing going on now because on the show, I always call you Kate but off stage or off mic, I, I call you Carmela, which everybody else calls you Kate. But I use Carmela because I think Carmel is a beautiful name and that’s your, your name is, [00:31:07.81] spk_1:
it is a beautiful name and I’m very thankful to have it. It’s just a really long name. If I’m writing like my name on a piece of paper for school, it’s just, it’s too long. [00:31:17.78] spk_0:
OK. Three syllables versus one. So all the, all the rest of the world, all the rest of the family uh and the world uh could use just one syllable Kate. I go with Carmela uh off, off mic. But so I think, uh you know, I think you sound like nine and Geno seven or so. He’s two years younger than you. To me. You sound like around nine and seven. [00:31:40.58] spk_1:
You you might be right. I was thinking more 12 and 10, but I really don’t remember how old we were. But I, like, remember sitting in the dining room, you setting up the microphones and having a headset and being like, wow, this is so cool. I’m on my uncle’s podcast. Like this is the coolest thing ever. [00:32:00.01] spk_0:
Yeah, I had the, I had brought my audio gear mics and headsets for everybody. Yes. Absolutely. This is, this is no 2nd, 2nd rate two bit operations. [00:32:08.82] spk_1:
No, no, no, this is perfect. [00:32:15.36] spk_0:
Absolutely. Non profit. We were sitting here your dining room table. Yeah. In your, yeah, in your, in your, is that, was that in, in the current home or was that the previous [00:32:20.20] spk_1:
home? Yeah, I think this is in, it was in the current home. It [00:32:55.91] spk_0:
was ok. Ok. You remember that? All right. Yeah, I don’t know. I, I should have a date on the file. Uh, but II I can’t find what date it was. Uh, you know, it’s, it should be dated with at least a year, but I, I can’t find that. So, Kate and Gino and I am your, I love that and I am his niece Carmela and I am his nephew Gino. So, all right. Do you know from the old days, uh when Sam Liebowitz at the studio used to put the drops in, uh for me in, in postproduction. So, anything else you remember about that? [00:32:59.55] spk_1:
I remember, like trying to put the dogs in the crate so they weren’t running all over cords and stuff. Let [00:33:21.71] spk_0:
the dogs out. Who let the dogs out. Right. Exactly. All right. Um, so that’s a, that’s an old, an old drop from the, from the olden days. Well, I, I still have to see if I can find out what year that was. All right. But, uh, thank you. And that is Tony’s take too. Go ahead, Kate. [00:33:30.53] spk_1:
We’ve got just about a boat load more time. Let’s go back to possible implications of the Supreme Court’s affirmative action decision with Jean Takagi. [00:34:13.79] spk_0:
Sounds like a good idea. And what you’re, what you’re delivering may very well be a promise you or you’re, you’re promising to deliver you. The grantee are promising and a promise has value, promise can be that exchange, that consideration. So it can be an exchange of money from the gran tour and promise from the grantee. That’s, that’s value. Again your point, not necessarily equal. They don’t have to be equal. They, they can even be Demi on one side. So promises are valuable and can be that exchange of consideration that you’re saying is an element of a contract. [00:37:42.76] spk_2:
Yeah, that’s, that’s right, tony. So, um I don’t think we’ve seen this litigated, so we don’t really know what the argument is gonna look like when we have an idea of what the argument will look like. We don’t know how, how the court would treat this. Um, we’ve certainly seen kind of demin value in other extensive contracts being enforced and saying, well, that’s good enough. Um, but there is kind of this long history of grants being recognized as gifts and federal and state laws saying that, hey, if you’re going to make a grant or gift, this is a charity to another organization. You have to have some steps to ensure that it’s actually being used for charitable purposes and private foundations have even more laws. Um uh that, that say you have to exercise expenditure responsibility, which all sorts of due diligence procedures and provisions in the grant agreement itself that must be included in order to make a gift. So, is that contract or is that just saying, hey, comply with the laws so we can make this gift to you? So, yeah, there’s some more nuanced academic arguments that, that, you know, people can make about this, but we’re starting to see the attack, right? So we’re now starting to see people go, hey, um on a contract. Um if you, if you’re making grants and you’re saying these grants are only to buy pock led organizations or black led organizations, that’s not uncommon, right? Tonya, I think we’re seeing quite a bit of that. Um now that can get attacked and where it could always have been attacked. But I think the Supreme Court holding has shown that, oh, if you want to attack it and somebody were to raise it up the appellate level to, you know, to, to the Supreme Court level. Um or appellate courts might just say defer and say this is so much similar to the rationale in, in the, the students for fair admissions case that we are going to just say um that this is a contract and this is sort of a a violation of 1981. So that’s kind of the, the concern there with grant agreements is, is, are they contracts, are they worded like contracts? And you know, maybe one of the steps that some grantmakers can take if they want to be careful about that, um is to try to um make more unrestricted grants and not have so many conditions that tied tied to the grant. So not so many promises coming from the other side, right, tony said to, to sort of minimize um what the value might look like that’s being returned, but still sort of complying with the laws um that require that the grantees spend the money properly. Um So one strategy anyway, there are going to be others and um I don’t want to discourage people from, you know, looking to make grants to buy pock led organizations, but they have to be careful on, on how they worded. And so just like with the employment context or the admissions context for that matter, it’s recruiting your vendors from different places, you can really seek to diversify the pool of applicants that come because it could be very um unequal in how we’ve approached vendor relationships in general, which might be just friends of board members or, you know, um people we already know or do business with and that might be the same people that have always done business um with the organization when it may not have been so focused on de I so [00:38:36.66] spk_0:
very narrow narrowing. So, right, Con raising consciousness. Um and I, I feel like talking about contracts, we’ve ventured into a little bit of uh nonprofit radio law school about uh consideration and the bargain for exchange. But we did it, we did it in simple terms. I think so. Uh but everybody gets a uh everybody gets one cle credit for listening, this uh lawyers, you get one continuing legal education credit for listening to today’s uh this episode. Um Any other areas. What, what, what else, what else concerns you uh uh about uh discrimination and, and places where we should be conscious. [00:40:03.97] spk_2:
Um So I’ll, I’ll give you maybe just a couple more examples of some dangerous areas or areas of concern and then I, I’ll try to end with something a little bit more positive. Um So on, on the concerning area. Uh in Missouri, the attorney general there directed all colleges to immediately stop considering race and scholarships. Um So, um not that wasn’t admissions based but just on scholarships. Um Lots of nonprofits need scholarships and fellowships for that matter. And, um, and other sorts of, uh, grants to individuals? And are those kind of now going to be attacked in some states in Missouri in Kentucky? Uh, the university’s president suggested that his institution should do the same thing, the, um, the Kentucky University president. So, you know, this is going around, um, the same person or organization backed by the same person, um, who funded the fund, the, the, the lawsuits in the affirmative action cases also. Yes. So they’ve also attacked um uh the Fearless Fund, which is uh an equity fund that was um aimed at helping um uh bipoc entrepreneurs think that was based um in Georgia. I’m not positive about [00:40:20.00] spk_0:
that. Say the name of the fund again, [00:42:24.24] spk_2:
Fearless Fund. So it’s not a, not, not a nonprofit fund, but it could have been, but it was looking to, to um specifically uh raise equity um for, you know, by uh led organizations or businesses. Um And that’s being attacked, same group also attacked two law firms for fellowship programs that were targeted at, at bipoc um individuals and, and raising diversity as part of their DE I program. So you, you can probably see all of the um just the, the, the statements um and the rhetoric coming out uh about um de I programs and, you know, some people attacking DE I programs in general, that’s, um you know, on the positive side, um that’s de I programs are not attack kind of all in general. Um, can certainly have a goal to increase diversity, equity and inclusion. Um That certainly can be a value of your organization and eliminating prejudice and discrimination is a valid 501 c three purpose in the regulations. So all of that is to, you know, it is to say there are ways to deal with some of the bad news that are coming out of the court systems. Um and laws that I don’t think are very good for, for racial justice and social justice, there are ways to deal with it. They’re not perfect. Um And will continue to find ways to advance racial equity and social justice. Um But you want to make sure especially for organizations that can’t, you know, afford to be on the forefront of, of saying, hey attack us, we want you to take us to court and we will, you know, fight the battles for you. Um You know, like the AC lu and the Nation League and like those that are experienced and have resources to be able to handle that type of litigation. You just have to be really careful that you’re not attacked and that, you know, defending that um diverts all of your resources away from getting the, the job done for your beneficiaries that you want. Um And so to, to really be careful of that, [00:42:57.62] spk_0:
but i it’s important to underscore that these are still very valid and accepted charitable purposes. The, the reduction, elimination of discrimination, you know, elevating, elevating uh uh people of uh uh lower, you know, uh uh underserved populations, et cetera. I mean, these are all, these are all still very valid charitable purposes. [00:43:51.02] spk_2:
And yeah, I, I would encourage funders to double down on their efforts to help these marginalized groups and organizations that are helping these marginalized groups. Um because um they may not all have the resources to be able to fight uh off uh other groups that, that decide that they want to attack. Uh some of the things that they’re doing and helping to educate um organizations as well, really, really helpful. So for community foundations and other capacity building organizations that are giving advice to, to nonprofits in general, yes, there are some organizations that can sort of take the courageous ground and uh take risks um with respect to some of these issues. Um But there are other organizations that, you know, really their beneficiaries are reliant on them to continue their service services. And um they just have to be a little bit more careful and if it just takes a little wordsmithing um to be careful in their documents, then, you know, they can really be helped by that [00:45:45.33] spk_0:
interesting point about, you know, scholarships too because they’re, they’re so widely used. Uh you know, it’s not just their own, my, my sense of the, the race based affirmative action, affirmative admissions was that, you know, that’s at, uh, schools that have the luxury of getting, you know, maybe hundreds of applicants for each spot or something. You know. So they, so they were, uh, previously, you know, had some spots designated, um, to put it simply, but scholarships are at probably every institution, regardless of how many applicants they get per, you know, how selective they can be. Scholarships are, are so widely used. So, it’s, it’s not just large institutions that, you know, it’s, that, that’s another instance of it, you know, trickling down, uh to, to smaller institutions, the implications trickling down. All right. Uh Did you want to leave us with something uh uplifting and, and uh positive? Well, now we, we, you know, we did say these, these are still valid charitable purposes. Don’t abandon your work. We’re not, you know, we just, uh, I, I invited Gene to raise consciousness. You know, you need to just be more alert now than, uh, than you were. Uh, although, as we said, section 1981 has been around since the 18 sixties. So that, that’s, there’s nothing new around the, the contracting conversation but uh Gene, we, what do you want to uh, leave us with something even brighter than that? [00:46:37.96] spk_2:
Well, there have been some foundations that have been doing really good work, um, and um individual sort of um donors who have really been supporting the efforts of racial justice and social justice organizations Um, and they are saying that this is a bump in the road. Um, and they will find ways to continue focusing, uh, on advancing their racial justice and social justice goals. Um And I’m hoping that sort of, everybody who believes in those goals continues to, like, really be supportive of them and helping, uh, others who are in the same, uh, sort of have the same set of values to, to deal with these bumps that we are experiencing in the road with, with some of the Supreme Court decisions and finding ways to move forward. It’s not time to sort of move back or just become completely defensive. It’s time to act and act in a, in a way that, um, sort of continues to advance uh what we want in our country and in our world [00:47:46.85] spk_0:
in, you need to read and subscribe to his uh nonprofit law blog where he’s the editor and uh, follow him at G tech. And if you need the services of an attorney, uh, should your clients need to be in California? No, they don’t need to be in California. No. Right. Jean. No, you have, you have clients, you have clients nationwide. I know that I never, I withdraw that question because I know the answer. If you need help with uh the law and legal issues and you’re a nonprofit organization, I would unqualified, suggest you look at, uh Neola group dot com doesn’t matter where you are in the country. Thank you very much, Gene. Always a pleasure. Thank you. Thank you for sharing your thoughts [00:47:51.60] spk_2:
so much. Appreciate it, tony. Thank you. All right, bye [00:47:54.84] spk_0:
till next time. [00:48:04.13] spk_1:
Next week, Brian Saber returns with his new book fundraising for introverts. If you missed any part of this week’s show, I [00:48:07.30] spk_0:
beseech you find it at Tomm martignetti dot com. [00:48:53.10] spk_1:
We sponsored by donor box. Outdated donation forms blocking your supporters, generosity Donor box, fast flexible and friendly fundraising forms for your nonprofit donor Boxx dot org and by Kila grow revenue, engage donors and increase efficiency with Kiva. The fundraisers, CRM visit Kila dot co to join the thousands of fundraisers using Kila to exceed their goals. Our creative producer is Claire Meyerhoff. I’m your associate producer, Kate martignetti. The show’s social media is by Susan Chavez. Mark Silverman is our web guy and this music is by Scott Stein. [00:49:00.00] spk_0:
Thank you for that affirmation. Scottie be with us next week for nonprofit radio. Big nonprofit ideas for the other 95% go out and be great.
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[00:00:39.45] spk_0:
And welcome to tony-martignetti Nonprofit radio. Big nonprofit ideas for the other 95%. I’m your aptly named host and the pod father of your favorite abdominal podcast. Oh, I’m glad you’re with us. I’d suffer the effects of a parapharyngeal abscess if I had to swallow the fact that you missed this week’s show. Here’s Kate, our associate producer with the highlights.
Hey, tony, we have possible implications of the Supreme Court’s affirmative action decision. Supreme Court’s decision this summer struck down college admissions affirmative action programs, but it may have repercussions for nonprofits around employment contracts, grants and other areas. Jean Takagi gives us his analysis. He’s our legal contributor and managing attorney at Neo, the nonprofit and exempt organizations Law Group. On Tony’s take two, [00:01:18.61] spk_0:
an old drop [00:01:50.07] spk_1:
were sponsored by donor box, outdated donation forms blocking your supporters, generosity, donor box fast, flexible and friendly fundraising forms for your nonprofit donor Boxx dot org and by Kila grow revenue, engage donors and increase efficiency with Kila. The fundraisers, CRM visit, Kila dot co to join the thousands of fundraisers using Kila to exceed their goals. Here is possible implications of the Supreme Court’s affirmative action decision. [00:02:35.30] spk_0:
It’s always a pleasure to welcome Jean Takagi back to nonprofit radio. I know you know who he is, but he deserves to have a proper introduction. Jean Takagi is our legal contributor and the managing editor of Neo, the nonprofit and exempt Organizations Law Group in San Francisco. He edits that wildly popular nonprofit law blog and is a part-time lecturer at Columbia University. The firm is at neola group dot com. The blog is at nonprofit law blog dot com and Jean is at GTA. Welcome back Jean. It’s good to see you. [00:02:41.24] spk_2:
Great to see you to tony. Thank [00:02:52.90] spk_0:
you. I just realized uh we both have red T shirts on. We’re matching today. You’re more for, but you bought a jacket over yours. That wasn’t necessary. Thank you. I’m just, uh you know, I’m, I’m t-shirt and bathing suit because I live because I’m on the beach. So I, I don’t, I don’t put a jacket on. I hope you’ll forgive me. My uh my informality. [00:03:04.51] spk_2:
It’s a little cooler here in San Francisco. We’re in the mid sixties today. So, well, [00:03:50.21] spk_0:
not too. Yeah, we’re in the mid uh North Carolina. All right. So we’re talking about the uh Supreme Court’s affirmative action decision and uh the potential for some implications beyond merely college admissions. Why don’t you, why don’t you just set us up with a reminder about that? Uh It was either late June or very early July decision that came out about uh college admissions uh was the um uh the students for fair admissions versus uh the Fellows of Harvard University. And then another case versus the University of North Carolina. So a private university and a public [00:05:35.84] spk_2:
university. Yeah. So um both cases were treated together and it was um in late June so early this summer um where the Supreme Court came down with a holding that basically said that um in higher education admissions um for uh state universities, uh and for private universities that are state actors and essentially probably because of the federal funding that they receive. Um Well, if they use race um in their admissions policies of deciding who can get in, um whether it’s uh a strict criteria or whether it’s a sort of like a plus factor in rating a candidate’s qualifications that is a violation of the Equal Protection Act uh of the 14th amendment. So the Equal Protection Act basically um says that every person is entitled to equal protection of the laws and that act is applicable to, to governments and state actors. And Harvard uh was brought into the case as an example of a state actor. Um And so, you know, some people were asking, well, how does this even apply to nonprofits? And, well, that’s one way that it applied. And it’s a little unclear about whether something like federal tax exemption. Does that make a nonprofit, a state actor in some cases really haven’t seen that yet, but, um, with the Supreme Court, we’re not really sure, um, what the ties are going to be. Um, but there are all sorts of potential applications for nonprofits that, that people are concerned about. And from my perspective, you know, the decision was fairly disappointing but not unexpected. [00:07:45.61] spk_0:
Yeah. And, and to just emphasize what you said, you know, we’re talking about potential implications beyond. So we want to raise people’s consciousness about things to watch out for, uh things to watch out for in the news, things to be aware of conscious of, in your own, in your own work, um possibly in grantmaking or, or grant receiving things like that. So, um, yeah, you know, my, uh lawyers are trained to always be learning. You, you never stop learning as an attorney. My uh law school learnings are sort of quickly being eroded by, you know, when I learned about, uh what I learned about abortion protection is obviously, uh no longer applicable. Uh And what I learned about, uh, discrimination, I remember there were, there was benign discrimination like, you know, uh whatever the fishing license or voting or voting or driver’s license laws are in your state, you know, that’s 16 or 18 or 21 you know, whatever it is, that’s, you know, kind of benign. There’s, there’s this, we’re surrounded by discrimination, there’s just, they’re different types. Some are benign and some are invidious, the, the hurtful kind. And then there’s, there was the, uh, sort of corrective or remedial kind which is what, what was at issue around the use of affirmative action in, in college admissions that, that corrective or beneficial kind. And, uh, uh, I, I saw in the, uh, one of the, one of the blog posts that you did at the, uh, the wildly popular nonprofit law blog dot com. Uh, Justice thomas’ concurring opinion was, uh, oh, no, I’m sorry, it was Justice Roberts, the main opinion, you know, eliminating discrimination means eliminating discrimination, discrimination of all types for all reasons for all purposes. Uh So which is a, you know, a part of the, the holding of the case. So, so has has implications, potential, has potential implications for us. [00:10:14.49] spk_2:
Yeah, and I, I don’t want to diminish just the impact on, on what this decision just if we look at it in isolation for admissions in higher education, um you know, that has tremendous impact because um even Justice Sotomayor said in, in her dissent, ignoring race will not equalize a society that is racially unequal and like that’s really true. So you can take a look at the, the de demographics and, and you, you can see that there are certain bipoc groups that have um less representation in higher education that can result in less uh income and wealth equality down the road. So there are huge implications of this just in higher education. But a lot of our nonprofit organizations or the bulk of them are not in the education space. And even though they may deal um on the peripheral with, with what the impacts of this decision are on higher education, they may have more direct or may be feeling more direct consequences because affirmative action applies as a defense in other types of cases as well, including uh in the employment context and in sort of um contracting uh cases where organizations enter into contracts with different vendors and whether you can, uh say I’m going to base the selection of a vendor specifically on belonging to a particular race. Um And those laws exist, you know, protecting against discrimination in employment and in contract uh making and enforcing before the Supreme Court holding and that Supreme Court holding didn’t change these cases. But affirmative action was used was, has been used as a defense in both those cases, both those type of claims. So there’s the question now, if affirmative action is no longer a defense in some of the higher education and admissions cases, will they be a defense in employment cases and in the contracting cases? So there are implications for this that are unknown yet. But um the trend doesn’t, you know, doesn’t seem good. And we’re seeing organizations and wealthy conservative individuals who really want to challenge these laws across the spectrum. Um Finding cases to attack um organizations including nonprofits and saying we don’t think we’re gonna allow you to do this again. We’re gonna sue you and we’re gonna test it in court and see what happens [00:10:41.28] spk_0:
and how many government agencies a, a, at all levels of government have, uh, you know, advantages for minority and women owned businesses, uh AAA preference. You know, you get a, you get a step up, it’s not the, it’s not the end, all, it’s not the sole factor but you get a, you get a, an advantage if you’re a minority and women owned business, for instance, those, those types of preferences you’re saying are now suspect at, uh, at, at, at best, I think [00:11:29.82] spk_2:
they could be. I mean, so there are specific carve outs, um, in, in the laws that can apply for certain things. But, yeah, you know, even if you know what, if we took justice Roberts at his words, right. That type of program would not exist either. Right. So, um, you know, equal is equal and we don’t pay any attention to historical. Um, uh, we just don’t, [00:11:51.39] spk_0:
we just don’t pay any attention to history. We just ignore what, what’s happened to minorities and, uh, in the country and, uh, we’ll, we’ll just wait, it’s a clean slate. We’ll just start with a clean slate. Everybody’s equal, which is, which is preposterous, you know, given our structures and invidious discrimination in, in seemingly benign places, uh, which are not benign. And, uh, yeah, we’ll just ignore history. [00:12:17.11] spk_2:
All right. I so appreciate how you frame that because that goes directly to sort of like the book banning and the, uh, history textbooks in Florida and all of that as well. It’s the same kind of, um, you know, uh, same type of organizations and, and people who are driving those same sort of claims and, and nonprofits have to be paying attention because they could be on the other side of those claims. [00:12:45.19] spk_0:
Yeah. All right. So let, let’s dig in a little deeper and, and see what uh your, your, your, your concerns are about the potential for uh for problematic areas. Uh Employment, you mentioned employment. What should we, what should we be conscious of, what should we, we be uh looking out for? [00:15:43.77] spk_2:
So, you know, there have been some, some measures by, you know, some organizations that would do things or, or that that would um with well intentioned goals, I think, say, you know, we really would like to have, let’s say a bipoc leader in place. So, you know, uh you know, with the uh succession planning, if our executive director is leaving next year, we would really like to find somebody who is a bi park person to lead this organization because the majority of communities we serve are bipoc communities. And that might be their rationale in saying we’re gonna go out and we’re gonna look for a bio executive director um to be our next executive director if you’re overtly restricting the hiring of an executive director to specific racial categories, that’s a violation of employment laws. So, title, um, six would be those that are, you know, governmental agencies, title seven would extend out to private employers, including for profits and nonprofits. Um, and there are all sorts of state discrimination laws as well. Right. So if you are, you know, it, if you feel like you can’t say I’m only gonna hire a white executive director, you know, if that feels wrong, you probably can’t just say I’m going to hire a black or a bipoc executive director, sort of by the same token. So, um, that is something that’s just built into anti discs laws. The idea was to help those who are underrepresented and marginalized, um, from suffering uh, to prevent them from suffering from such discrimination. But, you know, some people have called it reverse discrimination now, but those, you know, those same principles still apply, those laws still apply. So if you restrict your hiring and make it a qualifying factor to be, you know, a member of a certain race that would be illegal if you use it as a plus factor, that may be illegal. So saying, well, all things being equal, we’re gonna hire the person of a certain race. So, you know, that’s kind of where, you know, there are some affirmative action defenses in there, um, where we are trying to correct certain systems that might be internal or they might be, um, the product of, of historical, um, problems. Um, and there were affirmative action defenses allowed in that, but I don’t know how strong they’re going to, to be able to, to hold up in light of this opinion. Um, we’ll have to see how it gets tested because it’s, it’s definitely not the same as university admissions. Um, but they’re both, you know, um, facing kind of similar pressures from, from some of the conservative groups who want to attack that as being discriminatory. So we’ll see how that goes in the employment context. But that let me stop there, tony and see if you have any thoughts about it. [00:16:35.01] spk_1:
It’s time for a break. Donor box quote. We’ve seen incredible results with Donor box in the last year. We’ve boosted our donations by 70% and launched new programs in literacy, health, child care and tailoring for our girls. That’s Jennings W founder and executive director of Uganda 10 18. If you’re looking for a fast, flexible and donor friendly fundraising platform for your organization, check out donor box donor Boxx dot org. Now back to possible implications of the Supreme Court’s affirmative action decision. [00:17:24.60] spk_0:
This could apply to board membership too. It might be a very admirable goal because you serve a bipoc community. So you want your CEO and maybe other senior leaders and your board to be reflective, to be representative of the folks that you’re serving in your community. So it, it, it, it, it’s very it’s, it’s advantageous, it’s, it’s admirable. Um You wanna, you wanna empower folks uh who are among those? You’re, you’re helping? So how do you, how do you then frame this so that you’re, I don’t know, your, your board minutes, your, your board transcripts are, are not uh are not used as evidence against you. [00:20:16.30] spk_2:
Yeah. So, um you raise some great issues. The first um is um board membership and saying, hey, what if, what about asking for only bipoc board members or black uh persons who identify as black as board members? That’s what we’re looking for now because our board is all white. Um Can we do that? And you have to be careful of tokenism, of course. But um there’s nothing in the laws, any discrimination laws that would prevent that from happening so long as board members are not employees, right or under contract with the organization. So the any discrimination laws are specific to employment. Um Yeah, and contracting, at least the ones we’re talking about today and I don’t know of any that um refer to sort of volunteer board positions. Um that would be protective of that. But um kind of what else you were um talking about is like, well, not all is lost and it’s not like, ok, we’ve got this decision, we’ve got these laws and we can’t get to um solving some of our problems, let’s say our, our white um managerial and executive staff were 99% white males, you know, for us to look for hiring for a little bit of diversity would seem to make sense. Um, but if you tell us, we can’t use it as a plus factor, we can’t use it as a requirement of our next hire. Really hamstrings us. So what can we do? And so the all is not lost theory is saying, well, look to other things. So what you can do is you can encourage applicants who are, uh who identify with particular race groups. If that’s what you want to do, you can encourage them to apply, you can make sure that you’ve got internal systems that ensures that they’re not going to be tokenized. Um, you are going to uh perhaps recruit in areas or from other sources that um uh provide more candidates um that represent the, the groups that you want. So all up until saying you must be of this race group or ethnic group to be considered eligible to be and a higher or we’re gonna give you, uh uh a plus factor where we’re gonna consider your application more attractive because you’re a member of a race group solely for that reason. That’s the problem. But in the admissions case, um in, in the Supreme Court case, they, the, the majority opinion said, hey, guess what? You can’t say race is the factor. But in the admissions essay, if you talk about character that was um shown in dealing with problems that you had specific and [00:20:24.34] spk_0:
now you now on the individual level, [00:20:27.38] spk_2:
right? So [00:20:28.33] spk_0:
not the, not the, not the race or community level, [00:20:31.37] spk_2:
although race obviously played a factor [00:20:34.50] spk_0:
in that individual’s life. Right? But exactly, and you can run the level, [00:21:57.18] spk_2:
you can use that as criteria. So some people say, well, and the, the the majority holding was also clear that hey, you can’t use that as pretext and just say, write whatever you want. And, you know, it’s really just about race, but it, you really ask them to, to, to write something about themselves and if they want to include something about their race and what they’ve, you know, um overcome uh because of discrimination, past discrimination, that may be evidence of character that you can use in your uh in your process. So while that’s not a really elegant solution, and um you know, you can use socioeconomic factors, for example, in the admissions uh policies. Um that’s not exactly the same as race and we’re, you know, trying to deal with race. If that’s what we’re left with, we, we still can use those tools. So, um again, you can use tools and other strategies to ensure that you do get a diverse pool. And that may allow you to find the most, you know, um person based on other characteristics that ends up being somebody um who belongs to a race or ethnicity that you really wanted to, to have in that position in order to um further your de I goals, [00:22:00.80] spk_0:
anything else with uh employment gene? [00:22:26.20] spk_2:
Um I would just say employment is probably sort of the biggest risk area. So just be for, for organizations even again, well intentioned and trying to deal with historic injustices, be very careful in the employment area. So, um you know, to the extent you can um try to get legal help, an employment lawyer. And, you know, for those who are in cities that have bar associations with, um you know, volunteer legal services programs, talk with them because I think that this may be a popular area for a lot of local bar associations to provide some, some pro bono counsel. [00:22:48.21] spk_0:
We talked a little about contracts and, uh and I, I know you have concerns about uh grantees and, and grant tours as well. Uh uh around contracting uh around whether these are, in fact, contracts can we, can we move to, we move to that arena? Yeah. [00:25:10.46] spk_2:
And, and so, um contracts in general, um all nonprofits enter into contracts, right? Or just about all nonprofits enter into contracts. So the law, um which is uh the federal law anyway, and civil rights laws referred to as section 1981. Uh and section 1981 generally prohibits discrimination in making or enforcing a contract. And that includes any, you know, enjoying any terms uh of a contract as well. So, if you were to again, similar to the employment contract, say we will only hire a vendor if they are a member of a specific ethnicity or race, that’s gonna be in violation of 1981. So probably for, for most people, that kind of makes sense. But we have seen, you know, especially, um I I in the last few years as our social justice efforts have have risen with publicity of like some highly charged events um uh that have been um so terrible. Um uh We have seen movements that said, hey, we really want to increase sort of how we’re contracting out with diverse vendors as well, not just employees. And so people have been saying things like, you know, let’s contract out with more bipoc individuals or more women owned businesses or, um you know, and they’ve been looking at different ways to sort of increase their de i efforts in uh establishing vendor relationships. Um And that’s something now that you have to be very careful about as well. So again, no, just like as in, in the employment context, you can’t have a requirement um or even a plus factor of, of, of saying, you know, if you’re a member of a particular race, then you don’t qualify for this contract or you will not, you, you will be dis preferred for, you know, reasons of, of selecting uh a vendor for, for this contract. Um So how does this fall in respect? I just [00:25:38.88] spk_0:
before you before you make your, your follow on point. But I just want to remind folks that section 1981 is by no means new. This is Reconstruction Era. Yeah, 18 65 or four or something or probably 55 or 18 fi fi 18 65 or 66 was section 1981 to give freed slaves the all the benefits of contracts and, and, and this is the, the statute even says all the benefits that white people enjoy something like that. It’s in the, it’s in the text of the statute. So this is not nothing new is my point. [00:28:16.56] spk_2:
Yeah. Um So, well, over 100 and 50 years old now. Um And it’s something that, that you have to pay attention to, again, affirmative action has been used in the past as defense um in 1981 claims, but we’re not exactly sure how that’s gonna pan out, but I, I wanted to give you a specific example because we talked about it or you alluded to it in the beginning about grant agreements. Um And so as lawyers, we kind of learned like what a contract means, right? And it basically is, there are more than one party to a contract and they agree, they make some mutual promises and they each provide each other with some sort of value. Lawyers call it consideration that goes back and forth. And if you have those elements, then you’re in a contract So the question now is, what is a grant, is a grant agreement or contract? Is it two parties? Yes. Are they mutually agreeing on a bunch of terms and things? Yes. Now, is there value being exchanged on both sides? Now, that’s where there’s an issue. So most people think of a grant as a gift, right? We even filed it in our nine nineties. We, we lumped them all in as gifts and grants and donations. And so, uh if a gift, if it’s a gift and there’s not value coming back, then maybe it’s not a contract because there’s not that equal or it doesn’t have to be equal, but there’s not that exchange of value. Um On the other hand, there are like provisions in grant agreements that say, well, you must do this with the grant monies and you must give us results, you know, show us what the results are of those things. And if you don’t, if you don’t use those monies for those things, you have to return it to us. Um And, and those terms start to look a little bit more like contract terms, right? Are we making a gift for a restricted purpose, which is very valid argument or are we making a payment to get something done? Not for maybe for the funder but getting something done out in the community or producing something because the funder wants that to happen. So really they’re paying for it and you’re delivering it. Is it more like a contract or a gift? [00:29:09.98] spk_1:
It’s time for a break. Kila increase donations and foster collaborative teamwork with Kila. The fundraiser, CRM maximize your team’s productivity and spend more time building strong connections with donors through features that were built specifically for fundraisers. A fundraiser. CRM goes beyond a data management platform. It’s designed with the unique needs of fundraisers in mind and aims to unify fundraising, communications and donor management tools into one single source of truth visit Kila dot co to sign up for a coming group demo and explore how to exceed your fundraising goals. Like never before. It’s time for Tony’s take two [00:30:19.98] spk_0:
long time listeners. Oh, thank you, Kate. Thank you. Long time listeners will remember that this show used to be in a studio in New York City because I used to live stream the show every Friday. I’m pretty sure it was Friday at 1 p.m. from 1 to 2. And then from then I would start my weekend. Uh, and Sam Liebowitz was the producer of the show. He owned the studio where we used to do the show every Friday afternoon. And guests would come to, ideally, they would come to the studio and Sam had the idea of putting some what are called drops into the show and they’re, they’re uh essentially commercials. But for the show, it’s like, it’s like a testimonial. We would call it a, a testimonial for the show. And this is one of the uh early drops that, that we used in a bunch of shows, Sam inserted into a bunch of shows he would put them in, in postproduction. Let’s see if you, uh if you recognize anybody in this [00:30:26.62] spk_3:
lively conversation, talk, trans, sound advice. That’s tony-martignetti Nonprofit radio. And I am his niece Carmela and I am his nephew Gino. [00:30:40.30] spk_1:
How about, [00:30:42.31] spk_0:
can you recognize anybody in that? [00:30:44.18] spk_1:
That is so cute. We sound so tiny. That’s [00:30:50.43] spk_0:
you and your brother and Carmela. I, we have this strange thing going on now because on the show, I always call you Kate but off stage or off mic, I, I call you Carmela, which everybody else calls you Kate. But I use Carmela because I think Carmel is a beautiful name and that’s your, your name is, [00:31:07.81] spk_1:
it is a beautiful name and I’m very thankful to have it. It’s just a really long name. If I’m writing like my name on a piece of paper for school, it’s just, it’s too long. [00:31:17.78] spk_0:
OK. Three syllables versus one. So all the, all the rest of the world, all the rest of the family uh and the world uh could use just one syllable Kate. I go with Carmela uh off, off mic. But so I think, uh you know, I think you sound like nine and Geno seven or so. He’s two years younger than you. To me. You sound like around nine and seven. [00:31:40.58] spk_1:
You you might be right. I was thinking more 12 and 10, but I really don’t remember how old we were. But I, like, remember sitting in the dining room, you setting up the microphones and having a headset and being like, wow, this is so cool. I’m on my uncle’s podcast. Like this is the coolest thing ever. [00:32:00.01] spk_0:
Yeah, I had the, I had brought my audio gear mics and headsets for everybody. Yes. Absolutely. This is, this is no 2nd, 2nd rate two bit operations. [00:32:08.82] spk_1:
No, no, no, this is perfect. [00:32:15.36] spk_0:
Absolutely. Non profit. We were sitting here your dining room table. Yeah. In your, yeah, in your, in your, is that, was that in, in the current home or was that the previous [00:32:20.20] spk_1:
home? Yeah, I think this is in, it was in the current home. It [00:32:55.91] spk_0:
was ok. Ok. You remember that? All right. Yeah, I don’t know. I, I should have a date on the file. Uh, but II I can’t find what date it was. Uh, you know, it’s, it should be dated with at least a year, but I, I can’t find that. So, Kate and Gino and I am your, I love that and I am his niece Carmela and I am his nephew Gino. So, all right. Do you know from the old days, uh when Sam Liebowitz at the studio used to put the drops in, uh for me in, in postproduction. So, anything else you remember about that? [00:32:59.55] spk_1:
I remember, like trying to put the dogs in the crate so they weren’t running all over cords and stuff. Let [00:33:21.71] spk_0:
the dogs out. Who let the dogs out. Right. Exactly. All right. Um, so that’s a, that’s an old, an old drop from the, from the olden days. Well, I, I still have to see if I can find out what year that was. All right. But, uh, thank you. And that is Tony’s take too. Go ahead, Kate. [00:33:30.53] spk_1:
We’ve got just about a boat load more time. Let’s go back to possible implications of the Supreme Court’s affirmative action decision with Jean Takagi. [00:34:13.79] spk_0:
Sounds like a good idea. And what you’re, what you’re delivering may very well be a promise you or you’re, you’re promising to deliver you. The grantee are promising and a promise has value, promise can be that exchange, that consideration. So it can be an exchange of money from the gran tour and promise from the grantee. That’s, that’s value. Again your point, not necessarily equal. They don’t have to be equal. They, they can even be Demi on one side. So promises are valuable and can be that exchange of consideration that you’re saying is an element of a contract. [00:37:42.76] spk_2:
Yeah, that’s, that’s right, tony. So, um I don’t think we’ve seen this litigated, so we don’t really know what the argument is gonna look like when we have an idea of what the argument will look like. We don’t know how, how the court would treat this. Um, we’ve certainly seen kind of demin value in other extensive contracts being enforced and saying, well, that’s good enough. Um, but there is kind of this long history of grants being recognized as gifts and federal and state laws saying that, hey, if you’re going to make a grant or gift, this is a charity to another organization. You have to have some steps to ensure that it’s actually being used for charitable purposes and private foundations have even more laws. Um uh that, that say you have to exercise expenditure responsibility, which all sorts of due diligence procedures and provisions in the grant agreement itself that must be included in order to make a gift. So, is that contract or is that just saying, hey, comply with the laws so we can make this gift to you? So, yeah, there’s some more nuanced academic arguments that, that, you know, people can make about this, but we’re starting to see the attack, right? So we’re now starting to see people go, hey, um on a contract. Um if you, if you’re making grants and you’re saying these grants are only to buy pock led organizations or black led organizations, that’s not uncommon, right? Tonya, I think we’re seeing quite a bit of that. Um now that can get attacked and where it could always have been attacked. But I think the Supreme Court holding has shown that, oh, if you want to attack it and somebody were to raise it up the appellate level to, you know, to, to the Supreme Court level. Um or appellate courts might just say defer and say this is so much similar to the rationale in, in the, the students for fair admissions case that we are going to just say um that this is a contract and this is sort of a a violation of 1981. So that’s kind of the, the concern there with grant agreements is, is, are they contracts, are they worded like contracts? And you know, maybe one of the steps that some grantmakers can take if they want to be careful about that, um is to try to um make more unrestricted grants and not have so many conditions that tied tied to the grant. So not so many promises coming from the other side, right, tony said to, to sort of minimize um what the value might look like that’s being returned, but still sort of complying with the laws um that require that the grantees spend the money properly. Um So one strategy anyway, there are going to be others and um I don’t want to discourage people from, you know, looking to make grants to buy pock led organizations, but they have to be careful on, on how they worded. And so just like with the employment context or the admissions context for that matter, it’s recruiting your vendors from different places, you can really seek to diversify the pool of applicants that come because it could be very um unequal in how we’ve approached vendor relationships in general, which might be just friends of board members or, you know, um people we already know or do business with and that might be the same people that have always done business um with the organization when it may not have been so focused on de I so [00:38:36.66] spk_0:
very narrow narrowing. So, right, Con raising consciousness. Um and I, I feel like talking about contracts, we’ve ventured into a little bit of uh nonprofit radio law school about uh consideration and the bargain for exchange. But we did it, we did it in simple terms. I think so. Uh but everybody gets a uh everybody gets one cle credit for listening, this uh lawyers, you get one continuing legal education credit for listening to today’s uh this episode. Um Any other areas. What, what, what else, what else concerns you uh uh about uh discrimination and, and places where we should be conscious. [00:40:03.97] spk_2:
Um So I’ll, I’ll give you maybe just a couple more examples of some dangerous areas or areas of concern and then I, I’ll try to end with something a little bit more positive. Um So on, on the concerning area. Uh in Missouri, the attorney general there directed all colleges to immediately stop considering race and scholarships. Um So, um not that wasn’t admissions based but just on scholarships. Um Lots of nonprofits need scholarships and fellowships for that matter. And, um, and other sorts of, uh, grants to individuals? And are those kind of now going to be attacked in some states in Missouri in Kentucky? Uh, the university’s president suggested that his institution should do the same thing, the, um, the Kentucky University president. So, you know, this is going around, um, the same person or organization backed by the same person, um, who funded the fund, the, the, the lawsuits in the affirmative action cases also. Yes. So they’ve also attacked um uh the Fearless Fund, which is uh an equity fund that was um aimed at helping um uh bipoc entrepreneurs think that was based um in Georgia. I’m not positive about [00:40:20.00] spk_0:
that. Say the name of the fund again, [00:42:24.24] spk_2:
Fearless Fund. So it’s not a, not, not a nonprofit fund, but it could have been, but it was looking to, to um specifically uh raise equity um for, you know, by uh led organizations or businesses. Um And that’s being attacked, same group also attacked two law firms for fellowship programs that were targeted at, at bipoc um individuals and, and raising diversity as part of their DE I program. So you, you can probably see all of the um just the, the, the statements um and the rhetoric coming out uh about um de I programs and, you know, some people attacking DE I programs in general, that’s, um you know, on the positive side, um that’s de I programs are not attack kind of all in general. Um, can certainly have a goal to increase diversity, equity and inclusion. Um That certainly can be a value of your organization and eliminating prejudice and discrimination is a valid 501 c three purpose in the regulations. So all of that is to, you know, it is to say there are ways to deal with some of the bad news that are coming out of the court systems. Um and laws that I don’t think are very good for, for racial justice and social justice, there are ways to deal with it. They’re not perfect. Um And will continue to find ways to advance racial equity and social justice. Um But you want to make sure especially for organizations that can’t, you know, afford to be on the forefront of, of saying, hey attack us, we want you to take us to court and we will, you know, fight the battles for you. Um You know, like the AC lu and the Nation League and like those that are experienced and have resources to be able to handle that type of litigation. You just have to be really careful that you’re not attacked and that, you know, defending that um diverts all of your resources away from getting the, the job done for your beneficiaries that you want. Um And so to, to really be careful of that, [00:42:57.62] spk_0:
but i it’s important to underscore that these are still very valid and accepted charitable purposes. The, the reduction, elimination of discrimination, you know, elevating, elevating uh uh people of uh uh lower, you know, uh uh underserved populations, et cetera. I mean, these are all, these are all still very valid charitable purposes. [00:43:51.02] spk_2:
And yeah, I, I would encourage funders to double down on their efforts to help these marginalized groups and organizations that are helping these marginalized groups. Um because um they may not all have the resources to be able to fight uh off uh other groups that, that decide that they want to attack. Uh some of the things that they’re doing and helping to educate um organizations as well, really, really helpful. So for community foundations and other capacity building organizations that are giving advice to, to nonprofits in general, yes, there are some organizations that can sort of take the courageous ground and uh take risks um with respect to some of these issues. Um But there are other organizations that, you know, really their beneficiaries are reliant on them to continue their service services. And um they just have to be a little bit more careful and if it just takes a little wordsmithing um to be careful in their documents, then, you know, they can really be helped by that [00:45:45.33] spk_0:
interesting point about, you know, scholarships too because they’re, they’re so widely used. Uh you know, it’s not just their own, my, my sense of the, the race based affirmative action, affirmative admissions was that, you know, that’s at, uh, schools that have the luxury of getting, you know, maybe hundreds of applicants for each spot or something. You know. So they, so they were, uh, previously, you know, had some spots designated, um, to put it simply, but scholarships are at probably every institution, regardless of how many applicants they get per, you know, how selective they can be. Scholarships are, are so widely used. So, it’s, it’s not just large institutions that, you know, it’s, that, that’s another instance of it, you know, trickling down, uh to, to smaller institutions, the implications trickling down. All right. Uh Did you want to leave us with something uh uplifting and, and uh positive? Well, now we, we, you know, we did say these, these are still valid charitable purposes. Don’t abandon your work. We’re not, you know, we just, uh, I, I invited Gene to raise consciousness. You know, you need to just be more alert now than, uh, than you were. Uh, although, as we said, section 1981 has been around since the 18 sixties. So that, that’s, there’s nothing new around the, the contracting conversation but uh Gene, we, what do you want to uh, leave us with something even brighter than that? [00:46:37.96] spk_2:
Well, there have been some foundations that have been doing really good work, um, and um individual sort of um donors who have really been supporting the efforts of racial justice and social justice organizations Um, and they are saying that this is a bump in the road. Um, and they will find ways to continue focusing, uh, on advancing their racial justice and social justice goals. Um And I’m hoping that sort of, everybody who believes in those goals continues to, like, really be supportive of them and helping, uh, others who are in the same, uh, sort of have the same set of values to, to deal with these bumps that we are experiencing in the road with, with some of the Supreme Court decisions and finding ways to move forward. It’s not time to sort of move back or just become completely defensive. It’s time to act and act in a, in a way that, um, sort of continues to advance uh what we want in our country and in our world [00:47:46.85] spk_0:
in, you need to read and subscribe to his uh nonprofit law blog where he’s the editor and uh, follow him at G tech. And if you need the services of an attorney, uh, should your clients need to be in California? No, they don’t need to be in California. No. Right. Jean. No, you have, you have clients, you have clients nationwide. I know that I never, I withdraw that question because I know the answer. If you need help with uh the law and legal issues and you’re a nonprofit organization, I would unqualified, suggest you look at, uh Neola group dot com doesn’t matter where you are in the country. Thank you very much, Gene. Always a pleasure. Thank you. Thank you for sharing your thoughts [00:47:51.60] spk_2:
so much. Appreciate it, tony. Thank you. All right, bye [00:47:54.84] spk_0:
till next time. [00:48:04.13] spk_1:
Next week, Brian Saber returns with his new book fundraising for introverts. If you missed any part of this week’s show, I [00:48:07.30] spk_0:
beseech you find it at Tomm martignetti dot com. [00:48:53.10] spk_1:
We sponsored by donor box. Outdated donation forms blocking your supporters, generosity Donor box, fast flexible and friendly fundraising forms for your nonprofit donor Boxx dot org and by Kila grow revenue, engage donors and increase efficiency with Kiva. The fundraisers, CRM visit Kila dot co to join the thousands of fundraisers using Kila to exceed their goals. Our creative producer is Claire Meyerhoff. I’m your associate producer, Kate martignetti. The show’s social media is by Susan Chavez. Mark Silverman is our web guy and this music is by Scott Stein. [00:49:00.00] spk_0:
Thank you for that affirmation. Scottie be with us next week for nonprofit radio. Big nonprofit ideas for the other 95% go out and be great.
John Hicks returns with 9 steps that will burn the tires off your grants program. He’s principal and founder of DLBHICKS, LLC consulting. (Originally aired February 23, 2018)
