Council Contributions to Recent Legal Cases
As part of its advocacy work, the Council may weigh in on, or participate in, important legal cases when significant issues arise that will impact our members and the field. The Council’s participation is often as Amicus Curiae (Friend of the Court) whereby the Council, although not a party to the litigation, authors or co-authors a legal brief to inform the Court of its position on an issue and to assist the Court in making a decision in the case.
American Alliance for Equal Rights v. Fearless Fund
In 2023, the American Alliance for Equal Rights sued the Atlanta-based Fearless Foundation—led by Black women and committed to providing grants, tools, and mentorship to women of color—claiming that its program for Black female entrepreneurs is racially discriminatory.
The Council on Foundations and Independent Sector filed an amicus brief in support of Fearless Foundation. We believe—and the courts have previously ruled—that philanthropic organizations and individuals have the right to exercise their views through giving, as protected by the First Amendment. That includes critical efforts to support historically marginalized groups.
Parks Foundation v. Commissioner of Internal Revenue
On January 31, 2017, Alliance for Justice and the Council on Foundations filed a joint amicus brief in this case in the United States Court of Appeals for the Ninth Circuit. This appeal by a private foundation challenges a tax court decision that found certain communications funded by the private foundation had crossed the line to constitute impermissible lobbying.
The case raises significant yet rarely addressed issues regarding the application of the Internal Revenue Code’s lobbying rules to private foundations and charitable organizations. If the Tax Court’s decision were to stand, both private foundations and public charities would face great restrictions on their policy-influencing activities, particularly in the ballot measure context.
The Official Committee of Unsecured Creditors v. the Archdiocese of St. Paul and Minneapolis, et al
In this case, a federal bankruptcy court denied the request of a group of unsecured creditors to substantively consolidate the assets of 187 separate charitable entities—including schools and churches—with the debtor in the bankruptcy case.
The court found that forcing charitable, non-debtor entities into the bankruptcy process without their consent was inconsistent with Section 303(a) of the Bankruptcy Code, which prohibits the commencement of involuntary bankruptcy cases against a corporation that is not a moneyed business or a commercial corporation.
