Nonprofits Should Not Die on the DEI Hill

If nonprofits were in a shooting war, they would be taking withering fire from all sides right now. The forces of evil – that’s what they are, evil – have nonprofits triangulated. It almost feels like Custard’s last stand, except nonprofits don’t deserve Custard’s fate. That is why I am writing this post. Nonprofits don’t have to die on the DEI hill. As a Black man who studies the law of Civil Society, I hereby absolve nonprofits of the obligation to die here. I don't speak for all Black people, but hear me out anyway. Nonprofits have my permission to abandon the DEI hill.  Thank you for trying, but I’d rather nonprofits live to fight another day.

The triangulation is brutal. From one angle, nonprofits are taking heavy fire from anti-DEI forces, spurred on mightily by Students for Fair Admission and Fearless Fund. From a second, they are suffering heavy losses from forces claiming to fight against terrorism with indiscriminate accusations, as though they are lobbing ordinance on civilian bystanders. From still a third angle, nonprofits are suffering severe casualties from nativist forces crusading against migrants and not afraid to attack religious places. Despite their determined resistance and perhaps after very high casualties, nonprofits can prevail on only two of those fronts. I am here to tell nonprofits, and especially the white folk who work and believe in Civil Society, that they cannot win the DEI battle nor should they keep trying.  Do not die on this hill.

Nonprofits should abandon the DEI hill and vigorously defend the other two. Nonprofits have the superior moral and legal force and the tactical advantage on the hills from which nonprofits defend religion and speech. The evil forces want to dismantle nonprofits that provide food, shelter, and basic life necessities to authorized or unauthorized migrants. That is a battle that can be won because most of those nonprofits are religious folk armed with the First Amendment’s freedom of religion. That is a powerful sword that has already proven effective. Nativists can and even should secure the border. But inside the border, they cannot penetrate the First Amendment to destroy nonprofits that serve migrants as an exercise of faith. Likewise, nonprofits have a First Amendment defense of a different sort from which to defend their speech even against America’s staunchest ally in the middle east. Their defenses are weakened, of course, by tolerating anti-Semites within their midst. I consider myself a purist, but even I argue that tax exemption and hate speech are mutually exclusive. Nonprofits can strengthen their defenses by showing intolerance to hate speech, but they need not concede that speech contrary to one political side or the other constitutes hate speech or support for terrorism. The First Amendment operates from this hill as well and it should be vigorously defended. These fights can be won and nonprofits should stand and fight.

The same cannot be said of the battle over DEI. Despite heroic and valiant efforts, particularly by Roger Colinvaux whose brave defense of nonprofit DEI has been accepted for publication by Yale Law Journal, and the members of the ABA Accreditation Committee, who are “advancing to the rear” as we speak in defense of DEI accreditation standards, that battle cannot be won. Colinvaux’s efforts are doomed by an Achilles heal. He labels efforts to remediate discrimination “discrimination,” though with the modifiers “charitable remedial.” As in “charitable remedial discrimination.” I have explained elsewhere why that concedes too much.

Law School accreditors are in an even more indefensible position, though try as they might. The Council of the Section of Legal Education and Admissions to the Bar determines, by authority delegated from the U.S. Department of Education, which law schools shall be accredited. Until last month, DOE supported Council accreditation standards that enforced the notion of diversity, equity and inclusion in law schools. Needless to say, that tolerance has run its course. Resistance is futile because the Council’s authority is derived entirely from DOE:

The Section's Council and Accreditation Committee are recognized by the U.S. Department of Education (DOE) as the national accrediting agency for programs leading to the J.D. In this function, the Council and the Section are independent of the ABA, as required by DOE regulations. All state supreme courts recognize ABA-approved law schools as meeting the legal education requirements to qualify for the bar examination; forty-six states limit eligibility for bar admission to graduates of ABA-approved schools.

That authority can be withdrawn, everybody knows that. Years ago, I appeared before an Accreditation Committee “show cause” hearing to defend our Law School’s DEI-motivated admissions policies. FAMU Law’s DEI mission is written into it’s authorizing statute:

(6) The college of law at Florida Agricultural and Mechanical University shall be dedicated to providing opportunities for minorities to attain representation within the legal profession proportionate to their representation in the general population; however, the college of law shall not include preferences in the admissions process for applicants on the basis of race, national origin, or gender.

We were forced to defend our mission because our attrition rate was too high.  We admitted low scoring students but we didn’t lower academic standards. We had what the Council considered an unacceptable attrition rate precisely because we held all of our students to undiluted academic standards. And despite their lower LSAT scores, more than 85% of our students graduated. FAMU Law has always complied with the Accreditation’s bar passage standards. We continue to meet the bar passage standards which have only been tightened in recent years. We successfully defended our mission.

That was then, this is now. Students for Fair Admissions has rendered DEI synonymous with discrimination. Modifiers and good intentions will not change that. What’s more, DOE is bound to enforce rules against discrimination. We might think “discrimination” is too broadly defined so that it now includes affirmative action and DEI, but that issue has been decided against us.

U.S. Attorney Pam Bondi recently delivered a stark and easily enforceable warning to the Council. In response to a threatening DOE Dear Colleague Letter, the Council decided to suspend enforcement of its DEI accreditation standards. Here is the Council’s complete statement:

CHICAGO, Feb. 22, 2025 — The Council of the Section of Legal Education and Admissions to the Bar is currently in the process of reviewing and amending Standard 206 to ensure that it complies with federal law, while still achieving the goal of ensuring access to legal education for all persons. During its February meeting, the Council reviewed the latest draft and considered potential changes to ensure compliance with the recent Executive Orders and the Department of Education’s “Dear Colleague” letter dated February 14, 2025. The Council intends to submit this draft with revisions to the ABA House of Delegates in August, as previously planned, after which it anticipates the new standard will be in full force and effect.

In the meantime, the Council decided to suspend the existing version of Standard 206 until August 31, 2025, when the adoption of the revised standard is anticipated.

These decisions by the Council help to ensure that the revision of Standard 206 continues moving forward, while allowing the Council to integrate legal developments and forthcoming guidance from the Department of Education. The Council’s commitment to ensuring access to legal education to all people, including those who have been historically excluded from the legal profession, has not changed. However, the Council intends to ensure that the schools can comply with this standard consistent with applicable law.

The Council is recognized by the United States Department of Education (ED) as the accrediting agency for programs that lead to the J.D. degree. In this function, the Council and the Section are separate and independent from the ABA, as required by ED regulations.

The Council’s decision to suspend its DEI rule is not enough, according to Bondi:

Standard 206 of the Standards and Rules of Procedure for Approval of Law Schools explicitly requires schools to “demonstrate by concrete action a commitment to diversity and inclusion” including a commitment to “have a student body that is diverse with respect to gender, race, and ethnicity” and “having a faculty and staff that are diverse with respect to gender, race and ethnicity.” That requirement blatantly violates our nation’s civil rights laws and conflicts with the Supreme Court’s decision in Students for Fair Admission, Inc. v. President & Fellows of Harvard college.” Yet for nearly eighteen months since that decision, the Council has knowingly put law schools to a choice between compliance with the law and compliance with the Council’s accreditation standards by shamefully threatening that “the requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 206.”

. . .

Thus, while I applaud the Council’s suspension of enforcement, I am writing on behalf of the U.S. Department of Justice to make clear that when the Council revisits the issue, there is just one appropriate course: The Standard must be repealed in its entirety. And there is no reason to wait: the Council should repeal the Standard immediately.

I know people on the Council. I have conveyed my support for their efforts personally. But there is no winning this fight except by forfeiture of the ground already conquered. By that I mean that even despite the elimination of explicit standards, statements and written dictates, there is already in most law schools a thorough culture of diversity, equity, and inclusion; an unstated ethic of nondiscrimination against protected classes, imperfect though it remains. In law schools where that culture does not exist, it will never exist.  The culture does not depend on mandates anymore. And the populations from which the Council derives members are thoroughly vested in that culture, never mind statements and standards. Rather than defend the DEI hill, and risk the Council’s continuing ability to further that culture even in the absence of written mandates, the Council should simply remove the Standard. To fight to maintain a writing that is largely symbolic by now seems a waste. It is either that, or the DOE will get another nonprofit to accredit law schools. One that will not have the cultural ethos the Council has successfully cultivated for many long years. The Council will have heroically sacrificed itself. But it will no longer exist.

The Council’s problem is surely common to other nonprofits in the racial justice space. None of those nonprofits should die on the DEI hill. Live to fight another day.

darryll k. jones*

*This post originally appeared on Jonesing on Nonprofits.