I’m preparing to advise a 501(c)(3) board I serve on regarding its Diversity, Equity and Inclusion policy. I understand that Trump stopped Harvard’s grants due to allegations that Harvard’s DEI initiatives amount to race-based programming that could exclude or disadvantage individuals based on race or national origin in violation of Title VI of the Civil Rights Act of 1964. How should I advise my nonprofit how to adjust their stance on DEI as a result of this action against Harvard?
You are not alone in trying to figure out what to do now in view of Trump’s attack on Harvard and his Executive Orders seeking to eliminate DEI from federal agencies and everywhere else he can. There is no single answer to the question.
You are at greater risk if you receive federal grants of any kind because they may be cut by the feds at any time. Many of those cuts have been ruled illegal by federal courts (at least at the preliminary injunction stage), but recovering the grants and contracts already committed won’t necessarily be of much help next year if the feds decide not to renew the funding. Trump does not seem to care that cutting scientific research will have long-term adverse impacts on the entire country and perhaps the world, or that cutting current programs such as U.S. AID actually kills people.
If your organization does not receive federal grants, it would be harder for the feds to reach you. As I said recently in the answer to the Harvard question, terminating a charitable exemption requires a protracted process under current law. (See "Can Trump Revoke Harvard’s 501(c)(3) status?”)
I understand that a lot of charities are attempting to scrub their websites (and even modify their Form 990 tax information returns) to eliminate as many as possible of the several hundred words the feds may be looking for to see who should be challenged. Those who have the most immediate risk of the greatest loss seem to be scrubbing the most vigorously. Many of them are trying to change the language they use to describe their programs without changing the programs themselves.
Legally, it is not at all clear that the anti-DEI Executive Orders have the force of law. Catholic Law School Professor Roger Colinvaux has argued forcefully that DEI programs are protected under the First and Fifth Amendments, even if conducted by “state actors” getting federal grants. (See Ready Reference Page: “Is Charitable Remedial Discrimination Okay?”).
If you think the DEI programs are central to who you are and what you do, one question is whether you want to engage in anticipatory compliance or, as some call it, “anticipatory capitulation.” If you think this anti-DEI campaign is part of a broader program to centralize power in an authoritarian government, do you want to listen to prominent historians who say that one way to slow or stop authoritarianism is to have large-scale non-compliance with coercive orders? Can you join with others to push back on efforts to curb your activities? Can you wait until the courts tell Trump he can’t do everything he wants to do? He keeps losing cases on a regular basis on a whole range of his initiatives in strongly worded court opinions. (See Trump Litigation Watch). Can you cut back your programs if required to do so and still have enough resilience to outlast Trump, who won’t be President forever?
Your board will have to decide how important DEI is to the organization and how much it is willing to push back on the Administration’s highly questionable efforts to eliminate it. There is no one correct answer to these questions.
Comments
Dear Don,
Your worldview leaks out in so may painful ways. DEI is the most overt racism that has been so heavily perpetrated and promoted by your progressive agenda over these past decades. They scream to our racial minorities their inability to excel without a totally random process and policies of quotas and unmerited promotions. Our government is filled with such folly and we suffer at the efforts of the incompetent. They brand our minorities as inferior and those who are not but have worked hard to gain their expertise or position are put in the shadow of "you're there not because of your achievements but because of the color of your skin, gender or other more pervert and random criteria. DEI has never been the way to a colorblind society. I normally enjoy your council to non-profits but your uncontrolled Trump hating rage for a man that will be the most consequential President for decades to come has soured my ability to receive your council any longer. You're right when you say that non-profits who rely on the wasteful, indiscriminate, fraud infested, ideology laced spending of hard earned tax payer dollars, are bound to fall into the same unmerited support as your DEI friends. I can suffer a fool no longer - please unsubscribe me from such perverted ideology. I thought you were better than that, but I was so foolishly wrong. J.M.
I’ve forwarded your DEI Q&A to my Executive Committee. I really appreciate that you’re elevating these issues. I worry about foundations running for the hills when it would be more effective to organize and take a stand. -S.M.
Dear Don:
Like the comment made by the one unsubscribing above, I too think DEI is more harmful than helpful and was surprised by your so evident partisan position staked out favoring DEI. On the other hand, I share concern that the government be kept in check, whether it be a Democratic or Republican administration. I have certainly had my share of consternation at the executive branch over the last 12 years. There is much left in the courts to be decided about the limits of the executive power and much at stake. Perhaps a corrective that will restrain all administrations going forward is at hand. While I disagree with your position as to the value of DEI, I do appreciate your expertise with regard to not-for-profit law and governance and will continue to subscribe. Hopefully, in the future for the sake of your broad audience, answers will stick a bit more to the point.
This is a perfect answer to a terrible and difficult legal, strategic, and ethical question. Thank you so much, Don! -C.W.