Charitable Giving and Civil Rights: A Defense of Private Remedial Action
abstract. Private charitable organizations have long enjoyed the freedom to determine their mission and render appropriate charitable assistance, including by taking race, ethnicity, gender, and other traits into account when responding to the harmful effects of past discrimination, a practice this Feature terms “private remedial action.” The legality of this kind of trait-conscious assistance is strongly supported by the early American history of trait-based associations, federal tax law, and core values of free association. However, new legal and political attacks on affirmative action of all types have put charities on the defensive, leading many groups to change their programs and behavior even when the law is on their side. In one notable decision, American Alliance for Equal Rights v. Fearless Fund, a divided Eleventh Circuit panel forced a charity to stop awarding grants to Black women-owned businesses, finding that doing so likely violated the Civil Rights Act of 1866. In the wake of Fearless Fund, the Trump Administration has embarked on sweeping efforts to stop private organizations from engaging in what it terms “illegal discrimination” and “DEI.” If left to stand, rulings like Fearless Fund will threaten thousands of charitable programs, cause charities to operate from fear of losing their tax-exempt statuses rather than from commitments to their missions, and create a substantial chilling effect.
This Feature argues that these attacks on private remedial action are not supported in law or public policy and that the charities’ longstanding practice is not illegal discrimination. To the contrary, Congress has passed no civil-rights law targeting donative assistance, and public policy and the First Amendment right of expressive association strongly support the efforts of private groups to address social problems free from government interference. Absent a return to the pre-Fearless Fund status quo or new legislation, courts and the IRS should develop appropriate standards for private remedial action that are both consistent with a common-law approach to charity and mindful of the important role charities play in solving social problems in a free and pluralistic civil society.
author. Professor of Law, The Catholic University of America, Columbus School of Law; Visiting Professor of Law at the George Washington University Law School (2024 & 2025); Legislation Counsel, U.S. Congress, Joint Committee on Taxation (2001-2008). Thanks to the many colleagues who provided comments or insights on this project, including Ellen Aprill, Jeremy Bearer-Friend, Ricardo Castro, Harvey P. Dale, Rene H. DuBois, Kimberly Eney, Rosemary E. Fei, Jennifer A. Gniady, Armando Gomez, Jill R. Horwitz, Catherine E. Livingston, Ray D. Madoff, Jill Manny, Martha L. Minow, Alan B. Morrison, Celia Roady, Marin R. Scordato, Linda Sugin, John Tyler, LaVerne Woods, conference participants at the NYU National Center on Philanthropy and the Law, GW Law faculty-workshop participants, and Dean Stephen C. Payne for research support. Thanks also to Mikael Tessema and the entire editorial team at the Yale Law Journal, and to Fraser Trotter for research assistance. And, to JV.
Introduction
George Floyd’s murder in the spring of 2020 demonstrated for many that decades after the civil-rights movement, anti-Black discrimination remains a pervasive, intractable social problem.1 A white police officer, bearing the uniform of the state, used excessive force to kill a defenseless Black man while bystanders watched, like a modern-day lynching. In the convulsion that followed, public and private actors pledged a renewed commitment to identifying and remedying societal discrimination.2 Academics and journalists documented the many ways that centuries of systemic discrimination continue to affect Black people.3 Researchers documented pervasive racial inequalities in housing,4 access to credit and finance,5 and wages.6 Scholars pointed to a racial wealth gap7 and explained that even facially neutral laws can exacerbate racism when layered on top of longstanding inequalities.8
A flood of new programs across the private, public, and nonprofit sectors followed.9 Many law firms instituted diversity fellowships for summer hiring.10 New scholarships and initiatives for racial minorities and other disadvantaged groups spread across higher education.11 Nonprofit charities undertook a variety of diversity, equity, and inclusion (DEI) initiatives.12 Private foundations adopted grant programs with a DEI focus.13 The federal government and state governments dispensed aid to traditionally disadvantaged groups.14
While these kinds of equal-opportunity programs were not new, their widespread implementation triggered a backlash that had been simmering for years. The catalyst was the Supreme Court’s 2023 case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA). There, the Court held that the use of race as a positive factor in higher-education admissions decisions violates the Equal Protection Clause of the Constitution.15 Although SFFA addressed just one narrow aspect of affirmative action by state (or quasi-state) actors,16 an issue with a long and controversial pedigree,17 the case has become a tipping point for civil-rights policy on a grander scale. Chief Justice Roberts’s proclamations—in dicta—that “[r]acial discrimination [is] invidious in all contexts,”18 and “[e]liminating racial discrimination means eliminating all of it,”19 are clarion calls to those opposing consideration of race or other identity-based traits.
On cue, one prominent interest group, the American Alliance for Equal Rights (AAER) argued that all racial or similar ethnic preferences, whether by state or private actors, and even for charitable purposes, cause social harm, violate the fundamental principle of equality, and are unlawful.20 To that end, lawsuits by AAER and others challenging trait-conscious preferences have surged across the country against both public21 and private DEI initiatives.22 In one startling, unprecedented ruling, American Alliance for Equal Rights v. Fearless Fund, a divided panel of the Court of Appeals for the Eleventh Circuit construed the Civil Rights Act of 1866 to mandate that the state interfere with the charitable work of a private association and shut down its grant program for the benefit of Black women-owned businesses,23 promptly leading other private charitable associations to change or end their remedial programs.24
On the heels of Fearless Fund, the second Trump Administration initiated a purge of DEI-related programs. As one of its first acts, the Administration ordered all federal agencies to take “appropriate . . . measures . . . to encourage the private sector to end illegal DEI discrimination and preferences and comply with all federal civil-rights laws.”25 The Administration then challenged a wide array of programs, public and private.26Altogether, the Administration is leveraging federal power against trait-conscious practices in the private sector under the guise of “illegal discrimination” and “DEI” in ways that threaten to outlast its time in power.
This ongoing assault on remedial identity-based programs writ large has put private groups on the defensive. The Administration’s declaration that DEI is now “illegal discrimination” opens the door to arguments that DEI initiatives are a basis for revoking a charity’s tax-exempt status under § 501(c)(3) of the Internal Revenue Code either as illegal activity or as contrary to public policy.27 Charitable organizations have become uncertain whether to use not only race-conscious criteria but also any trait that is the subject of antidiscrimination laws, such as gender identity, sexual orientation, or ethnicity.28 Privately run charities have erased “diversity, equity, and inclusion” from their materials and changed their day-to-day operations out of fear of federal-government investigations29 or Fearless Fund-like lawsuits.30 Programs for the benefit of minorities, women, and many religious groups, such as cash grants, scholarships, and other aid, are potentially suspect. The chilling effect on private behavior is real and cause for alarm.31
Yet, despite the rush to judgment, outside of the specific context of the use of race in higher-education admissions, the SFFA decision left the law of private association and the generic use of DEI policies wholly untouched. The Chief Justice’s urging in SFFA that all racial discrimination be eliminated, however noble in intention, is maddeningly misleading. Individuals have always had wide latitude in their private lives to choose their intimate associates and to form groups that exclude others, including based on traits, whether race, gender, or sexual orientation. Indeed, civil-rights laws operate against a baseline freedom to make choices, or discriminate, based on race or otherwise. In fact, many civil-rights statutes carve out spheres of exemption where discrimination may continue.32 The First Amendment guarantees associational rights and protects religious freedom.33 The Chief Justice’s remarks cannot be taken literally.
Moreover, as a moral-policy judgment that equates prejudiced behavior with affirmative action to remediate social harm, the Chief Justice missed the importance of associational freedom and pluralism in American civic life. From the early days of U.S. history, private individuals have lawfully formed associations, often with trait-based criteria as an organizing principle, often in opposition to government, and often to promote causes and provide trait-conscious assistance in furtherance of their missions.34 Civil-rights law and charitable tax law have developed alongside trait-based associations that lawfully provide trait-conscious assistance. Private efforts to address social inequality by mission-driven groups are longstanding, known to Congress, and barred by no law.
This Feature focuses on the legality of private, voluntary efforts to remedy the effects of discrimination, or what the Feature terms remedial action. In general terms, remedial action refers to an entity’s use of personal identifying characteristics such as race, ethnicity, gender, sexual orientation, or other traits to determine eligibility for a program of donative assistance in furtherance of the organization’s mission. Private remedial action is a form of affirmative action, but occurring in the charitable, donative context, conducted by mission-driven organizations.35 The Feature uses the terms “charity” and “charitable” generically to refer both to charities and other groups recognized under § 501(c)(3) of the Internal Revenue Code, including those organized for charitable, religious, educational, scientific, and literary purposes.36 The types of programs potentially include any form of donative assistance, such as grants, scholarships, internships or fellowships, and other forms of cash or in-kind funding.37
Part I of the Feature establishes that there is a strong presumption in favor of the legality of private remedial action. The Part first traces the early development of associational law in the United States, which allowed the routine formation of trait-based associations pursuing trait-conscious remedial action. The Part then surveys the charitable-tax-law developments in the twentieth century that fostered and supported the elimination of discrimination as a charitable purpose, including by remedial action. Finally, the Part contends that this history is consistent with the First Amendment’s strong protections for freedom of association that cover even exclusionary trait-based conduct. This freedom furthers the constitutional values of group identity, pluralism, and independence from government orthodoxy.
Part II of the Feature considers the implications of the Fearless Fund ruling that private remedial action is a form of illegal discrimination. The ruling, if adopted more widely, threatens the freedom long enjoyed by private charities to associate, determine their missions, and render appropriate assistance. Part II also examines the decision as a matter of statutory interpretation and concludes that the court’s interpretation is deeply flawed, that the 1866 Act does not apply, and that remedial action is not “illegal discrimination.”
Part III turns to the separate question of whether remedial action, as a presumptively legal activity, may nonetheless result in loss of tax-exempt status as a practice that is contrary to public policy. The Part discusses two versions of the public-policy doctrine, a soft version that complements the illegality doctrine (discussed in Part II), and a hard version articulated by the Supreme Court in Bob Jones University v. United States.38 The Part concludes that remedial action is not only consistent with but also furthers public policy by promoting pluralism and private philanthropic solutions to social problems independent from government.
Part IV then considers whether the First Amendment protects remedial action under the doctrine of expressive association, finding that precedent strongly supports trait-conscious acts of expression that are deeply connected to an organization’s mission. The Feature then offers concluding observations. The way forward, pending any congressional action, is for the IRS and the courts to continue to develop the common law of charity and to determine, based on the context, the extent to which remedial action may be used as part of a charitable program.
See Amy Forliti, Steve Karnowski & Tammy Webber, Chauvin Guilty of Murder and Manslaughter in Floyd’s Death, Associated Press (Apr. 20, 2021, 10:06 PM EDT), https://apnews.com/article/derek-chauvin-trial-live-updates-04-20-2021-955a78df9a7a51835ad63afb8ce9b5c1 [https://perma.cc/E5SF-CAL5].
See Audra D.S. Burch, Amy Harmon, Sabrina Tavernise & Emily Badger, The Death of George Floyd Reignited a Movement. What Happens Now?, N.Y. Times (Apr. 20, 2021), https://www.nytimes.com/2021/04/20/us/george-floyd-protests-police-reform.html [https://perma.cc/S8LB-8984]; Gilian Friedman, Here’s What Companies Are Promising to Do to Fight Racism, N.Y. Times (Aug. 23, 2020), https://www.nytimes.com/article/companies-racism-george-floyd-protests.html [https://perma.cc/8DCH-HMKL].
See Mitch Smith, Ernesto Lodoño & Glenn Thrush, Here Are the Most Significant Findings Against the Minneapolis Police, N.Y. Times (June 16, 2023), https://www.nytimes.com/2023/06/16/us/police-doj-report-highlights-minneapolis.html [https://perma.cc/5GUP-8BVP]; Council of Econ. Advisors, Racial Discrimination in Contemporary America, White House (July 3, 2024), https://bidenwhitehouse.archives.gov/cea/written-materials/2024/07/03/racial-discrimination-in-contemporary-america [https://perma.cc/73B8-ETPM].
Owen Minott, Understanding and Addressing Racial and Ethnic Disparities in Housing, Bipartisan Pol’y Ctr. 4 (Dec. 2021), https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2021/12/BPC_Racial-Disparities-Brief_RV2-3.pdf [https://perma.cc/XBW5-RUXU].
See, e.g., Growing Tomorrow’s Leaders, Morrison Foerster, https://www.mofo.com/culture/diversity/diversity-training-programs [https://perma.cc/CF3E-QKNB] (highlighting the firm’s commitment to “promot[ing] greater inclusion,” as indicated by membership of the Leadership Council on Legal Diversity); Kim Bhasin, Gerald Porter, Jr. & Jeff Green, Corporations Face a Reckoning on Race, Bloomberg News (July 22, 2020, 11:59 AM ET), https://www.bloomberg.com/news/storythreads/2020-07-22/corporations-face-a-reckoning-on-race [https://perma.cc/4YLM-JEHD] (discussing corporate conversations about race in 2020).
See, e.g., Akin Gump Hosts Its Largest Strauss Diversity & Inclusion Scholar Class, Akin Gump (July 6, 2020), https://www.akingump.com/en/insights/press-releases/akin-gump-hosts-its-largest-strauss-diversity-and-inclusion-scholar-class [https://perma.cc/CX54-KJMZ] (announcing the recipients of the firm’s Diversity and Inclusion Scholarship).
Sarah Wood & Walter Hudson, A Year Later, Institutions Reflect on Systemic Changes Following the Murder of George Floyd, Educ. Ledger (May 24, 2021), https://www.theeduledger.com/home/article/15109296/a-year-later-institutions-reflect-on-systemic-changes-following-the-murder-of-george-floyd [https://perma.cc/9RF8-3EFL].
Samantha Mercado, Philanthropy and DEI: Building on Momentum Post-2020, Philanthropy News Dig. (Nov. 14, 2023), https://philanthropynewsdigest.org/news/philanthropy-and-dei-building-on-momentum-post-2020 [https://perma.cc/DQ3P-29V3]; Foundations Report Greater Focus on Diversity, Equity, and Inclusion, Philanthropy News Dig. (Oct. 10, 2023), https://philanthropynewsdigest.org/news/foundations-report-greater-focus-on-diversity-equity-and-inclusion [https://perma.cc/D788-X9BM].
See Grants for Organizational Diversity, Equity, and Inclusion, Nonprofit Org. for Philanthropic Initiatives, https://www.thenopi.org/toolkit/diversity-grants [https://perma.cc/BW26-R56G] (outlining various private foundations with diversity, equity, and inclusion (DEI) grants, including the American Philosophical Foundation, the Hewlett Foundation, and the David and Lucile Packard Foundation).
To comply with Title VI, federal agencies typically condition funding for private entities on prohibiting practices that discriminate on the basis of race. See C.R. Div., Title VI of the Civil Rights Act of 1964, U.S. Dep’t Just. (Mar. 24, 2025), https://www.justice.gov/crt/fcs/TitleVI [https://perma.cc/B5NY-3P7Q]. While noting that “discrimination that violates the Equal Protection Clause . . . committed by an institution that accepts federal funds also constitutes a violation of Title VI,” the SFFA majority declined to decide whether Title VI was an independent basis for invalidating Harvard’s and the University of North Carolina’s admissions programs. SFFA, 600 U.S. at 198 n.2 (citing Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003)). Justices Gorsuch and Thomas would have construed Title VI independently of the Equal Protection Clause. Id. at 287 (Gorsuch, J., joined by Thomas, J., concurring).
Initially in 1978, the Court allowed race-based affirmative action in admissions under the Equal Protection Clause (and Title VI), but subject to strict scrutiny, meaning that any plan must further a compelling government interest and be narrowly tailored to serve that interest. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 319-20 (1978) (plurality opinion). Twenty-five years later in Grutter v. Bollinger, 539 U.S. 306 (2003), the Court again upheld an affirmative action plan but with restrictions, including a time limit.
About American Alliance for Equal Rights, Am. All. for Equal Rts., https://americanallianceforequalrights.org/about [https://perma.cc/49P9-PJJT] (noting that “an individual’s race should not be used to help them, or harm them, in their life’s endeavors”); Brief of Appellant at 11-12, Am. All. for Equal Rts. v. Fearless Fund Mgmt., 103 F.4th 765 (11th Cir. 2024) (No. 23-13138). American Alliance for Equal Rights and Students for Fair Admissions were both founded by the same man, Edward Blum. See Daniel Wiessner, Texas Grant Program Settles Conservative Group’s Race Bias Lawsuit, Reuters (Aug. 12, 2024, 1:25 PM ET), https://www.reuters.com/legal/legalindustry/texas-grant-program-settles-conservative-groups-race-bias-lawsuit-2024-08-12 [https://perma.cc/3W6W-QENR].
Vitolo v. Guzman, 999 F.3d 353, 362, 365 (6th Cir. 2021) (finding that preferences based on race and gender under the American Rescue Plan Act failed strict and intermediate scrutiny under the Equal Protection Clause); Strickland v. Dep’t of Agric., 736 F. Supp. 3d 469, 484 (N.D. Tex. 2024) (finding the same as to USDA’s use of race and sex in the Emergency Relief Program of 2022); Ultima Servs. Corp. v. Dep’t of Agric., 683 F. Supp. 3d 745, 774 (E.D. Tenn. 2023) (holding that the Small Business Act’s rebuttable presumption of disadvantage based on race failed strict scrutiny and violated the Equal Protection Clause); Faust v. Vilsack, 519 F. Supp. 3d 470, 476-77 (E.D. Wis. 2021) (granting a temporary restraining order after finding that a loan-forgiveness plan for farmers likely violated the Equal Protection Clause by considering race); Wynn v. Vilsack, 545 F. Supp. 3d 1271, 1275, 1294 (M.D. Fla. 2021) (issuing a preliminary injunction after finding that the American Rescue Plan likely could not just use race to define “socially disadvantaged farmers and ranchers”); Nuziard v. Minority Bus. Dev. Agency, 721 F. Supp. 3d 431, 509 (N.D. Tex. 2024) (challenging the premise of a government agency providing support for minority businesses). Some states adopted statutes to attack existing programs, including scholarships for minority students and women. See, e.g., Diversity, Equity, and Inclusion Initiatives at Public Institutions of Higher Education, 2023 Tex. Gen. Laws 2936 (codified at Tex. Educ. Code Ann. § 51.3525 (West 2024)) (prohibiting state colleges and universities from promoting DEI or giving preference on the basis of protected statuses).
Lauren Aratani, How the US Supreme Court’s Affirmative Action Ruling Unleashed Anti-DEI Cases, Guardian (Sep. 6, 2024, 7:00 AM ET), https://www.theguardian.com/law/article/2024/sep/06/dei-affirmative-action-lawsuits [https://perma.cc/FD84-L3ED] (reporting that in the year after SFFA was decided, “68 lawsuits that call DEI into question” were filed); see Jeff Green & Kelsey Butler, Corporate Diversity Becomes Next DEI Target After US Supreme Court Decision, Bloomberg (Nov. 22, 2023, 5:30 AM ET), https://www.bloomberglaw.com/bloombergterminalnews/bloomberg-terminal-news/S4IT61T1UM0X [https://perma.cc/2KHH-6883]; Tatyana Monnay, Blum’s Group Drops DEI Lawsuit Against Morrison Foerster, Bloomberg (Oct. 6, 2023, 5:24 PM ET), https://www.bloomberglaw.com/product/blaw/bloombergterminalnews/bloomberg-terminal-news/S24M4RT0G1KW [https://perma.cc/NK32-S3EL].
Claire Suddath, Edward Blum’s American Alliance for Equal Rights Scores a Win—Sort Of, Bloomberg (Aug. 15, 2024, 4:00 PM ET), https://www.bloomberg.com/news/newsletters/2024-08-15/edward-blum-s-american-alliance-for-equal-rights-scores-a-win-sort-of [https://perma.cc/5REF-7NUM] (explaining how the American Alliance for Equal Rights has gotten at least six organizations to back down on their DEI programs).
Ending Illegal Discrimination and Restoring Merit-Based Opportunity, Exec. Order No. 14,173, § 4, 90 Fed. Reg. 8633, 8634-35 (Jan. 31, 2025) (ordering the end of “diversity, equity, and inclusion” and requiring the Attorney General to “deter DEI programs or principles . . . that constitute illegal discrimination or preferences”). Subsequently, the Education Department under the Trump Administration issued a “Frequently Asked Questions” (FAQ) page about the use of racial preferences in education under Title VI. While noting that SFFA was limited to admissions decisions, the FAQ said the Court used “broad reasoning” that will have broad “implications for race-based policies for education generally.” Off. for C.R., Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act, U.S. Dep’t Educ. 2 (Mar. 1, 2025), https://www.ed.gov/media/document/frequently-asked-questions-about-racial-preferences-and-stereotypes-under-title-vi-of-civil-rights-act-109530.pdf [https://perma.cc/NA5K-RTQD]. Similarly, the State of Indiana began investigating DEI initiatives at private universities. Cate Charron, Rokita First State AG to Threaten Private Colleges over DEI, Echoing Trump with Harvard, IndyStar (June 16, 2025, 8:09 AM ET), https://www.indystar.com/story/news/politics/2025/06/16/how-attorney-general-todd-rokita-impact-nonprofit-status-private-colleges/84031759007 [https://perma.cc/RS6F-WRN8].
In just a few months, the Administration has, among other measures: terminated all “equity-related” grants and all DEI performance requirements for grantees, Ending Radical and Wasteful Government DEI Programs and Preferencing, Exec. Order No. 14,151, 90 Fed. Reg. 8339, 8339 (Jan. 20, 2025); required that all federal grantees agree as a term of their grant to be in “compliance in all respects with all applicable Federal anti-discrimination laws,” Exec. Order No. 14,173, 90 Fed. Reg. at 8634; demanded that all federal agencies take steps “to encourage the private sector to end illegal discrimination and preferences, including DEI,” Exec. Order No. 14,173, 90 Fed. Reg. at 8635; issued a memorandum “intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex,” Memorandum on Ending Illegal DEI and DEI Discrimination and Preferences from Pam Bondi, U.S. Att’y Gen., to Dep’t of Just. Emps. 1 n.1 (Feb. 5, 2025), https://www.justice.gov/ag/media/1388501/dl [https://perma.cc/DQ7X-JDL2]; asserted that “a school may not take account of a student’s race in distributing” financial aid, scholarships, prizes, administrative support, or job opportunities “even if race is only being considered as a positive or plus factor,” Off. for C.R., supra note 25, at 5; began investigations into forty-five universities for partnering with “The Ph.D. Project,” an organization that provides “doctoral students with insights into obtaining a Ph.D. and networking opportunities, but limits eligibility based on the race of participants,” Office for Civil Rights Initiates Title VI Investigations into Institutions of Higher Education, U.S. Dep’t Educ. (Mar. 14, 2025), https://www.ed.gov/about/news/press-release/office-civil-rights-initiates-title-vi-investigations-institutions-of-higher-education-0 [https://perma.cc/77TE-9NML]; and began investigations into six universities for allegedly awarding impermissible race-based scholarships and one university for allegedly administering a program that segregates students on the basis of race, Office for Civil Rights Initiates Title VI Investigations, supra.
See Ellen P. Aprill, Revoking Tax-Exemption for Pursuit of DEI and Other Alleged Forms of Discrimination, 79 Tax Law. (forthcoming 2026) (manuscript at 14-15), https://ssrn.com/abstract=5233657 [https://perma.cc/X7MP-Y5T2].
Camila Gomez, Colleges Rushed to Comply With Trump’s Anti-DEI Guidance. A Judge Just Struck It Down. Now What?, Chron. Higher Ed. (Aug. 15, 2025), https://www.chronicle.com/article/colleges-rushed-to-comply-with-trumps-anti-dei-guidance-a-judge-just-struck-it-down-now-what [https://perma.cc/PS7Q-FME5] (noting that Education Department directives “prompted dozens of colleges to overhaul offices, eliminate jobs, and even cancel cultural events”).
The Trump Administration’s executive order does not define “illegal” discrimination, but by targeting private actors, and when combined with the Fearless Fund ruling, the chilling effect on lawful activity will be substantial. See Alex Daniels, ‘Strategic Ambiguity’ of Trump DEI Orders Raises Big Questions About What’s Legal, Chron. Philanthropy (Apr. 4, 2025), https://www.philanthropy.com/article/strategic-ambiguity-of-trump-dei-orders-raises-big-questions-about-whats-legal [https://perma.cc/7W7W-ZZQE] (“Some are scrubbing their websites and other published materials free of anything suggesting they are promoting DEI.”).
These include challenges to the American Association for University Women’s fellowship for women from underrepresented backgrounds to attend professional school, the American Bar Association’s scholarship to encourage racial and ethnic minorities to apply to law school, the Gates Foundation’s (and two other foundations’) scholarships for certain ethnic groups, and Health Affairs’s training and publication opportunities for ethnic groups underrepresented in the medical journal, among others. See, e.g., Joint Stipulation of Dismissal at 1, Do No Harm v. Am. Ass’n of Univ. Women, No. 24-cv-1782 (D.D.C. Aug. 9, 2024), https://donoharmmedicine.org/wp-content/uploads/2024/08/DNH-v.-AAUW-Joint-Stipulation-of-Dismissal-08.09.2024.pdf [https://perma.cc/9GJN-8DHN] (settling a § 1981 challenge to a race-based scholarship provided that the American Association of University Women no longer uses race as a consideration); Karen Sloan, ABA Drops ‘Minority’ Requirement from Law Student Scholarship Amid Lawsuit, Reuters (Nov. 3, 2025, 2:34 PM EST), https://www.reuters.com/legal/government/aba-drops-minority-requirement-law-student-scholarship-amid-lawsuit-2025-11-03 [https://perma.cc/GEC6-3Y94]; Press Release, Am. All. for Equal Rts., American Alliance for Equal Rights Files Request to IRS to Examine Racial Practices at Three Tax-Exempt Foundations: Gates Foundation, Lagrant Foundation and Creative Capital Foundation (Apr. 1, 2025), https://americanallianceforequalrights.org/american-alliance-for-equal-rights-files-request-to-irs-to-examine-racial-practices-at-three-tax-exempt-foundations-gates-foundation-lagrant-foundation-and-creative-capital-foundation [https://perma.cc/NH33-4KPA]; Brian Flood, Do No Harm Drops Lawsuit Against Health Journal After It Scraps ‘Discriminatory’ Scholarship Requirements, Fox News (Jan. 22, 2024, 11:00 AM ET), https://www.foxnews.com/media/do-no-harm-drops-lawsuit-against-health-journal-after-scraps-discriminatory-scholarship-requirements [https://perma.cc/XW54-U4RF]; Verified Complaint at 9, Am. All. for Equal Rts. v. Hidden Star, No. 24-cv-128 (W.D. Tex. Feb. 5, 2024) (concerning a charity’s use of a grant contest based on being a racial minority).
See David A. Brennen, The Chilling Effect of SFFA v. UNC/Harvard on Race-Based Affirmation by Tax-Exempt Charities, 29 Fla. Tax Rev. (forthcoming 2025) (manuscript at 19, 23-25), https://ssrn.com/abstract=5193533 [https://perma.cc/6U4A-QL52]; Lori Villarosa, Ben Francisco Maulbeck & Gihan Perera, Racial Justice Programs Under Fire: Foundations Are Running Scared When They Should Double Down, Chron. Philanthropy (Feb. 6, 2024), https://www.philanthropy.com/opinion/racial-justice-programs-under-fire-foundations-are-running-scared-when-they-should-double-down [https://perma.cc/9VK3-MQ6M] (listing examples of “the pervasiveness of . . . philanthropic backsliding” including altering language on websites, reducing advocacy activity, adopting race-neutral approaches, and imposing extralegal reviews on grantees).
Cf. Peter Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 5 (2002) (defining affirmative action to “mean a program in which people who control access to important social resources offer preferential access to those resources for particular groups that they think need special treatment”). Like Schuck’s definition, private remedial action involves control over resources, but exclusively by private actors and in the donative context.
The free provision of services, such as healthcare, advice, or counseling could also qualify as DEI programs or policies. DEI is, however, a misleading term because it has no inherent meaning. DEI is easily construed as including illegal discrimination, say in the form of mandatory hiring quotas. In practice, however, DEI refers to a panoply of programs and policies that seek to educate or promote values such as inclusivity or fairness. Some forms of DEI, such as training about bias and the fostering of community understanding of different cultural perspectives, may even be legally supported (if not required) as a way of helping to prevent illegal discrimination. See Press Release, Mass. Off. of the Att’y Gen, AG Campbell Issues Guidance for Businesses on Diversity, Equity, Inclusion, and Accessibility Employment Initiatives in the Workplace (Feb. 13, 2025), https://www.mass.gov/news/ag-campbell-issues-guidance-for-businesses-on-diversity-equity-inclusion-and-accessibility-employment-initiatives-in-the-workplace [https://perma.cc/Z9FE-92FM]. Charities, including schools, might also use DEI to develop programming that acknowledges trait-based differences.