Article: The Chilling Effect of SFFA v. UNC/Harvard on Race-Based Affirmation by Tax-Exempt Charities

David A. Brennen (University of Kentucky – J. David Rosenberg College of Law) recently published, The Chilling Effect of SFFA v. UNC/Harvard on Race-Based Affirmation by Tax-Exempt Charities, 2025. Provided below is an Abstract: 

In 2023, the Supreme Court decided in SFFA v. Harvard/UNC that colleges and universities are significantly restricted in their ability to engage in race-based affirmative action when making admissions decisions. Post-SFFA, many have wrongly suggested that the SFFA opinion means that race may never be considered in admissions decisions or in decisions–whether by colleges or others–concerning related matters like awarding scholarships or in employment. This Article asserts that this expansive view of SFFA is inappropriate and leads to a chilling effect on affirmative action in higher education and related areas. However, instead of simply asserting that SFFA, when it applies, permits some considerations of race in admission, this Article goes further by arguing that the SFFA restrictions do not even apply to admissions decisions by some private colleges. For instance, private colleges like Harvard, as a recipient of federal financial assistance, must abide by SFFA because they are subject to Title VI, which is often equated to also being subject to the Equal Protection Clause. But what if Harvard, or any other private tax-exempt actor, decided to forego receiving federal financial assistance, which is a legal requirement before Title VI can apply? Could such private actor then lawfully engage in the type of race-based affirmation action that SFFA otherwise restricts? More directly, do the prohibitions of SFFA apply to private tax-exempt actors who do not accept any form of federal financial assistance?

Part I of this Article examines the impact of SFFA on the ability of private and public actors–both colleges and non-colleges–to engage in race-based affirmative action when making admissions or admissions-adjacent decisions. Part II outlines the chilling effect that SFFA has had on affirmative action efforts in higher education and related areas, stemming primarily from, at best, a misunderstanding of the limits of the opinion or, at worst, an intentional recharacterization of it. Part III examines whether Section 501(c)(3) tax-exempt status itself could be viewed as a type of federal financial assistance for purposes of applying federal civil rights statutes that are premised on the private actor being a “recipient of federal financial assistance.” Part IV examines whether engaging in race-based affirmative action could be viewed as a violation of established public policy. Finally, the Article concludes that, despite the limits imposed by SFFA on public colleges (and private ones that receive federal financial assistance) to engage in race-based affirmative action, colleges may continue to consider race in the admissions context to a limited extent. Further, the Article concludes that, even after SFFA, private tax-exempt charities that are not recipients of federal financial assistance are not subject to the restrictions of SFFA. Thus, these private charities may engage in race-based affirmative action when making admissions or admissions adjacent decisions–even if such engagement goes beyond the permitted use of race outlined in SFFA.

https://lawprofessors.typepad.com/trusts_estates_prof/2025/05/article-the-chilling-effect-of-sffa-v-uncharvard-on-race-based-affirmation-by-tax-exempt-charities.html