SFFA Case Summary and Ruling

On June 29, 2023, the U.S. Supreme Court issued its ruling on two cases involving the use of race-conscious admissions practices by colleges and universities: Students for Fair Admissions (SFFA) v. Harvard and SFFA v. University of North Carolina (UNC).  

The majority opinion held that the race-conscious admissions programs implemented by Harvard and UNC violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 and therefore constitute unconstitutional discrimination on the basis of race. 

The Council is working to understand how the decision’s reverberations may extend to philanthropy and to our nonprofit partners. To better support our members and the broader charitable sector, our legal team is developing FAQs and other materials to answer your questions about the potential consequences for your organizations, your nonprofit partners, and your communities. Additionally, we are sharing a range of resources from our members, partners, and other stakeholders discussing what this decision may mean for the work of foundations and nonprofits, as well as potential paths forward.   

Since the Supreme Court's decision, there have been subsequent lawsuits and other activity. The Council's legal team is closely following these developments and how they could impact our members and the sector.  We will continue to provide updated resources and information that reflects our current legal analysis.

Resources:

• Legal FAQ: An FAQ from the Council's legal team on the impacts and implications from the Supreme Court's decision.
• Steptoe & Johnson Analysis: Commissioned by the Council and Independent Sector, this analysis looks at how the Supreme Court’s decision could potentially impact foundations and other nonprofit organizations
• Questions and Answers Regarding the Supreme Court's Decision in Students for Fair Admissions, Inc. v Harvard College and University of North Carolina: The Departments of Justice and Education released guidance for colleges related to admissions in the wake of the Supreme Court's June decision. Released August 2023. 
• Charitable: Eliminating Prejudice and Discrimination: Nonprofit Law Blog post from August 2023. 
• Preliminary Guidance Regarding the U.S. Supreme Court’s Decision in SFFA v. Harvard and SFFA v. UNC: EducationCounsel developed preliminary guidance for higher education institutions and leaders. Published July 2023.
• The Board’s Role in Adopting and Overseeing an Organization’s Approach to Race-Conscious and Race-Exclusive Activities and How Counsel Can Help: Brief by Joshua Mintz, Vice President, General Counsel, and Secretary, John D. and Catherine T. MacArthur Foundation. Drafted before the Supreme Court's June 2023 decision was announced.
• Tax-Exempt Approaches to Decision-Making Informed by Race: Terminology, Definitions, Risk and Focus on Racial Equity and Justice:  John Tyler, Martha Jimenez, and Lauren Bright present a framework for charities and foundations to integrate racial considerations into decision-making, detailing approaches such as race-neutral and race-based, with associated risks and equity intentions.

Responses:

• Kathleen Enright’s Statement: Statement from Council President and CEO Kathleen Enright
• Philanthropic Joint Statement: Led by the Robert Wood Johnson Foundation and the Ford Foundation, and signed by more than 100 organizations, including the Council