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Affirmative Action Is a Matter of Faith for Religious Institutions

January 12, 2024
Client Alert

Religious groups and their associated nonprofit community charities and schools have historically been on the front line of serving ethnic and racial minorities. Motivated by religious beliefs, they advance their missions in tangible ways, not merely through donations and fundraising but through programming, schools, services and grantmaking. Yet in the wake of the recent U.S. Supreme Court decision in Students for Fair Admissions v. President and Fellows of Harvard College, 1 in which a majority of the justices found well-intentioned minority inclusion efforts unconstitutional, questions have been raised about whether a religious nonprofit or school can continue to demonstrate their commitment to serving underrepresented groups and minorities without facing adverse judicial scrutiny. Given the Supreme Court’s treatment of religious issues in the last few terms, the answer could be yes.

The decision — in which the group Students for Fair Admissions (SFFA) challenged admissions programs at Harvard University and the University of North Carolina — has been read in some quarters as a fundamental overhaul of affirmative action in the United States through the application of the Equal Protection Clause. The Equal Protection Clause was included in the Fourteenth Amendment following the Civil War to ensure that laws apply equally to all citizens regardless of race. The Supreme Court majority in SFFA specifically found that the college affirmative-action programs were riddled with racial stereotypes that could not be justified under a strict-scrutiny standard, and the court held that decision-makers could not apply racial preferences in administering programs.

Some groups across the country have now challenged various grant and scholarship programs targeted at improving educational or economic conditions for underrepresented groups and minorities. The challengers argue that racial qualifications for grant and program applications violate the decision in SFFA on both constitutional and statutory grounds.

Read full article here.

1  No. 20-1199, slip op. (U.S. June 29, 2023)

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