Nonprofit Law Prof Blog

Religious Organizations Prepare for 'Potential Onslaught' of Evictions

Writing for today's edition of Religion News Service (RNS) news, Kathryn Post states that the Supreme Court’s August 26 decision to end the federal eviction moratorium brings new challenges for religious leaders and organizations working to aid those at risk for homelessness. Post cites to recent data from the U.S. Census Bureau indicating that more than 3.6 million Americans say they could face eviction in the next two months.

This startling statistic has brought the following response from Sarah Abramson, vice president of strategy and impact at Combined Jewish Philanthropies in Boston: "We’re very, very nervous. There is already a tremendous housing shortage in Boston. And we know from our data, and from the experience of our partners who do this work, just how difficult it was for somebody who has been evicted in the past to get housing.”

Jerrel T. Gilliam, executive director of Light of Life Rescue Mission in Pittsburgh, also shared concerns: “We are going to need to be very creative, and to think outside the box in order to prepare for what could be a potential onslaught of people needing assistance in a short amount of time.” 

In its August 26 decision, the Court ruled that the Centers for Disease Control and Prevention lacked the authority to establish a federal eviction moratorium. According to the Court, such a moratorium requires congressional approval. The decision comes as renters and landlords face a backlog of promised funds. According to Census Bureau data, the government has thus far distributed only about $5.1 billion of the $46.5 billion in federal rental assistance funds intended to prevent eviction.

“We definitely have to work hard to make sure that money reaches people,” said Shams DaBaron, a New York activist who also goes by “Da Homeless Hero.” “We have to cover both sides: these small landlords that need it, and those who are extremely poor.”

DaBaron is currently living in an apartment with the support of a voucher program, but he says the city is behind on three months of rent. An eviction moratorium is one measure that can help buy more time while such funds face bureaucratic delays.

DaBaron gained national attention as unofficial spokesperson for the residents of the Lucerne, a hotel-turned-shelter during the pandemic in Manhattan’s Upper West Side that became the center of New York’s “homeless hotel” debate. When he was not advocating for his fellow residents, DaBaron partnered with local group Open Hearts to develop a program called Soulful Walk and Talks. The program provided hotel shelter residents the opportunity to walk to the nearby Riverside Park with local faith leaders from a range of religious traditions who provided a safe space for spiritual reflection.

“We didn’t want to make it a religious thing, but we understand the value of spirit, of soul, of that deep essence within everybody,” said DaBaron. “One of the things that came out of it, from talking to many of the faith leaders, is that many of them were transformed, just as many of us were transformed.”

“It was definitely very impactful,” said Rabbi Lauren Herrmann of the Society for the Advancement of Judaism, who joined in the Walk and Talks and organized other clergy participants. “For one thing, I really understood for the first time in my life the issues surrounding the shelter system, and why people choose to be on the streets instead of being in shelters. … The shelter system is deeply broken, and some of the stories I heard were deeply upsetting.”

Herrmann and DaBaron see the Soulful Walk and Talks as tending to the essential spiritual needs of those facing homelessness. They hope to continue and expand the program as the federal eviction moratorium lifts. Yet, DaBaron and Herrmann also pointed to structural changes that need to take place. New York state implemented a new eviction moratorium on Sept. 1 that extends until January 2022. However, the moratorium does not address the city’s lack of affordable housing, the income cliffs that foster dependence on government programs and the health and safety risks facing those in congregate shelters, where many former Lucerne residents are finding themselves since the hotel shelter closed this summer.

In Pittsburgh, Light of Life Rescue Mission takes a multifaceted approach to homelessness by providing a range of services including case management, education, unemployment services and accommodations for those facing housing insecurity.

Gilliam, the Christian organization’s executive director, is concerned the end of the eviction moratorium will mean a sudden, sharp increase in the number of residents facing evictions. At one point during the pandemic, evictions in Pittsburgh slowed to a complete halt — in a typical year, according to Gilliam, Pittsburgh sees 14,000 evictions.

Gilliam suggested implementing preventive measures that would allow landlords to receive rent payments while enabling those at risk for evictions to find suitable housing.

“We’re pleading with everyone,” said Gilliam. “Let’s try to get people help while they’re still in the home and help the landlord have another month or two of rent, so that we can find a place for them without them having to pass through homelessness to get assistance.”

The pandemic has not been as kind to all religious organizations working to serve those facing housing insecurity. Chaplain Asma Inge-Hanif, founder and executive director of Muslimat Al Nisaa, has been serving the Baltimore community for 30 years. The organization provides health, education and social services to all, regardless of their ability to pay, and its Home Shelter is especially designed to meet the needs of Muslim women. She says her organization has served thousands of people over the years.

In the last year and a half, Inge-Hanif almost died from COVID-19 and lost her organization’s signature location. “I couldn’t pay the rent anymore, even though they claim there was an eviction moratorium,” she said. Now, Inge-Hanif is working to keep the shelter open on a small scale so she can help meet housing needs, especially those of people arriving from Afghanistan.

“I’m getting so many requests all the time from people who are getting evicted,” she said. “It’s often people who have no status and people of color. Everyday I get seven to 10 requests for shelter and housing. And I can’t help them.”

As the federal eviction moratorium ends, Inge-Hanif is hoping to raise money for an apartment building so she can house more people. She also says governments need to make rental assistance and other services more accessible.

“That’s why people are being evicted. They can’t get through the paperwork,” said Inge-Hanif. “The people who need the help are not in a position to maneuver through all the red tape. … The way the system is set up prevents the people who are most in need from actualizing success and being self-sufficient.”

That, indeed, appears to be the sad truth.

Prof. Vaughn E. James, Texas Tech University School of Law

IRS to No Longer Issue Letter Rulings on Certain Activities of Private Foundations

In Revenue Procedure 2021-40, 2021-38, IRB (due for publication on September 20, 2021), the Internal Revenue Service is set to announce that it will no longer issue letter rulings on whether certain transactions are self-dealing within the meaning of section 4941(d) of the Internal Revenue Code.  In making the announcement in a recent Guidewire release, the Service stated that specifically, it "will not issue rulings on whether an act of self-dealing occurs when a private foundation (or other entity subject to section 4941) owns or receives an interest in a limited liability company or other entity that owns a promissory note issued by a disqualified person." This approach amplifies Rev. Proc. 2021-3, 2021-1 IRB 140, which sets forth areas of the Internal Revenue Code relating to issues on which the Internal Revenue Service will not issue letter rulings or determination letters.

Prof. Vaughn E. James, Texas Tech University School of Law 

 

Adediran: Disclosures for Equity

Atinuke O. Adediran (Fordham) has posted Disclosures for Equity on SSRN (122 Columbia Law Review forthcoming 2022): Here is the abstract:

While one might expect that the nonprofit sector is an equitable space where generosity and social justice are the norms, the sector suffers from funding inequalities. Despite corporations’ and private foundations’ pledges to fund nonprofit organizations that are led by members of, or that serve, communities of color, there are racial disparities in nonprofit funding. Research reveals that in comparison to White-led nonprofit organizations, organizations led by or serving communities of color are chronically underfunded. These disparities in funding mean that organizations that serve communities of color are more likely to go defunct or lack resources. Increased funding for minority-led or serving organizations can have a profound positive impact on the criminal justice system, healthcare, environmental justice, housing, labor, and employment. Indeed, it would be difficult to fight mass incarceration without the work of nonprofit charities like Bryan Stevenson’s preeminent organization, Equal Justice Initiative.

This Article proposes two novel remedies to address this issue. The first is for charities to publicly disclose their institutional donors in Schedule B of Internal Revenue Service (“IRS”) Form 990. The second is for IRS Form 990 to include information on the race and ethnicity of top managers, directors, and the communities an organization serves. Mandating these disclosures would allow the public to assess whether pledges to support racial justice come with funding rather than empty promises. While the Supreme Court’s recent case, Americans for Prosperity Foundation v. Bonta (“AFPF”) struck down California’s donor disclosure requirements, this Article makes an important distinction between individual and institutional donors that the AFPF case ignores. As the disclosures would only apply to institutional donors and would include an opt out provision for controversial organizations, they would protect the right to freedom of association while promoting transparency in nonprofit funding and racial justice. By using mandatory disclosures to address racial inequities in not-for-profit law, the nonprofit sector might finally contend with persistent racial disparities in funding that leave communities of color underserved.

The article is particularly timely given a recent Washington Post analysis (Corporate America's $50 billion promise) that raises questions about corporate support for efforts to address racial inequality, noting that "more than 90 percent of that amount — $45.2 billion — is allocated as loans or investments they could stand to profit from, more than half in the form of mortgages" and that only about $70 million "went to organizations focused specifically on criminal justice reform."

Lloyd Mayer

Cryptocurrency and Nonprofits

Peter Howson (Northumbria University, UK) has published Crypto-giving and surveillance philanthropy: Exploring the trade-offs in blockchain innovation for nonprofits in Nonprofit Management and Leadership. Here is the abstract:

A blockchain is a smart electronic database, distributed to all users, immutably tracking every transaction that has ever taken place between nodes on a network. The technology is being used by some nonprofits to address various operational challenges, including attaching automated conditions to charitable donations facilitated by programmable “crypto-giving” platforms. Drawing from analysis of technical documents provided by active crypto-giving projects, this review considers how these platforms enable radical shifts in sectoral power relations through “surveillance philanthropy”. This algorithmic surveillance ensures project funding fully reflects the interests of donors, while potentially restricting nonprofits in meeting the dynamic and complex needs of project beneficiaries. The paper considers the benefit trade-offs from crypto-giving platforms in three areas of utilization: (a) new forms of donor engagement and fundraising, (b) new tools for organizational governance, and (c) novel provision of development assistance. Despite the possible efficiency and transparency benefits of crypto-giving platforms, more research and practitioner engagement is required to ensure the sector's funding is secure and sustainable, without entailing significant risks for proposed beneficiaries.

For additional coverage of cryptocurrency and nonprofit issues, see Philip Hackney & Brian Mittendorf, Charities are taking digital money — but there are risks (Salon), Crypto, Meet Donor-Advised Funds: a New Way of Giving (The Chronicle of Philanthropy), Nonprofits Get a New Type of Donation: Cryptocurrency (N.Y. Times).  

Lloyd Mayer

Donors Battle GFA World (formerly Gospel for Asia) in Toronto Courtroom

MinistryWatch, a watchdog organization focusing on religious nonprofits, recently reported on the continuing legal dispute between former donors and GFA World (formally Gospel for Asia). The most recent developments may have been missed by U.S. nonprofit observers because they are happening in a Toronto courtroom, unlike an earlier class action suit against the organization that was brought in Arkansas and settled in 2019. 

According to the report, the Canadian lawsuit alleges that GFA World misused more than $100 million in donations. The allegations are based in part on asserted discrepancies between documents filed by GFA World, specifically Canadian tax forms reporting millions of dollars going to India and Indian forms showing no transfers from Canada to India. The donors bringing the suit are seeking class action status. GFA World has denied any wrongdoing.

Lloyd Mayer

University of Louisville Settles Legal Dispute with ex-President for $800,000 Paid by Insurance Company

The Associated Press and The Courier Journal report that afters years of litigation and spending more than $6 million in taxpayer funds, the University of Louisville and its affiliated foundation have agreed to resolve their legal dispute with ex-President James Ramsey for $800,000 paid under the foundation's directors and officers insurance policy. President Ramsey served for 14 years, but his tenure ended in turmoil after allegations arose relating to improper spending by both the university and the foundation, including allegedly excessive compensation paid to Ramsey and his then chief of staff. The original complaint filed by the University and the foundation can be found here.

An earlier news report stated that the IRS was auditing the foundation, presumably based at least in part on the public allegations of wrongdoing. The most recent report states that the foundation has released its tax claims against Ramsey as part of the settlement. But it is unclear to me how that agreement could prevent the IRS from imposing self-dealing or other excise tax penalties, if it chooses to do so.

Lloyd Mayer

Sackler Settlement Includes Releasing Control of Two Foundations and Temporarily Not Seeking Naming Rights

Tbis week a bankruptcy court approved a settlement with the Sackler family, which has faced allegations that it bore responsibility for the deadly opioid crisis. In-depth Coverage: NPR, N.Y. Times, Wall Street Journal. Several states have already announced they will appeal the ruling, and it remains to be seen whether the U.S. Department of Justice will join that appeal.

An earlier MarketWatch report on the settlement highlights two nonprofit-related provisions. First, the family has agreed to surrender control of two foundations to parties appointed by the bankruptcy court or to the trustees of the National Opioid Abatement Trust. Here is the relevant provision from the settlement:

In addition, the individual trustees of NOAT, or such other qualified party or parties as shall be selected by the Bankruptcy Court, will, subject to receipt of necessary approvals, become the controlling members of the Raymond and Beverly Sackler Foundation and the Raymond and Beverly Sackler Fund for the Arts and Sciences, which shall have an aggregate value of at least $175 million, and will be required to limit the purposes of the Foundations to purposes consistent with philanthropic and charitable efforts to ameliorate the opioid crisis.

Second, the Sackler familly will be barred from putting their names on buildings or institutions to which they donate money until they complete the agreed-upon payment of $4.5 billion (over nine years) and are no longer involved in the opioid business. Here is the relevant provision from the settlement:

A prohibition with regard to the Sackler family’s naming rights related to charitable contributions until they have fully paid all obligations owed by them under the terms of the contemplated settlement and exited, worldwide, all businesses that engage in the manufacturing or sale of opioids.

The settlement does not prevent the family from making charitable donations, and it does not require the removal of the Sackler name from existing buildings and institutions, although the report notes some charities have already done so and others are considering doing so.

Lloyd Mayer

Former CEO of Florida Coalition Against Domestic Violence Agrees to Repay $2.1 Million

Florida officials annnounced last week that the former chief executive officer of nonprofit Florida Coalition Against Domestic Violence has agreed to repay $2.1 million in alleged excess compensation paid to her, the Miami Herald reported. In addition, the nonprofit's insurer agreed to pay an additional $1.7 million to the Department of Children and Families and a court-appointed receiver, and two other former officers agreed to pay $60,000. The nonprofit will be dissolved.

As previously covered in this space, the settlement grew out of a state audit triggered by the reported $761,000 paid to the CEO for the fiscal year that ended on June 30, 2017. The nonprofit received almost of its funding from the state of Florida, which it would then distribute to domestic violence centers throughout the state. It eventually came out that the CEO had in fact been paid more than $7.5 million over three years. According to the most recent news report, the state alleges that the board compensation committee worked with the CEO to conceal the high level of compensation that she received. But the CEO's attorney pushed back on the assertion that the amount of compensation paid was improper or excessive.

Lloyd Mayer

IRS & DOJ Continue to Pursue and Win Conservation Easement Cases

The IRS and DOJ continue their pursuit of syndicated conservation easement deductions and those individuals who promoted them, and continue to win those disputes. Recent developments include:

• The 11th Circuit upheld the denial of a conservation easement deduction and imposition of accuracy-related penalties in TOT Property Holdings, LLC v. Commissioner. For an analysis of the decision, see Peter J. Reilly, TOT Property Holdings Highlights Fundamental Flaw In Conservation Syndications.

• In Hancock County Land Acquisitions v. United States, 2021 U.S. Dist. LEXIS 143312, 2021 WL 3197336 (N.D. Ga. July 7, 2021) (all Internet-accessible copies of the decision appear to be behind a paywall, including I assume PACER), a Federal district court rejected an attempt by a partnership and its tax matters partner to require the IRS Appeals Office to consider its conservation easement deduction dispute before forcing them to pursue litigation, even though the IRS had already issued a Final Partnership Administrative Adjustment (FPAA) notice. The court found that given the procedural poster of the case, it had to grant the government's motion to dismiss because it lacked federal subject matter jurisdiction. The dispute therefore will instead proceed in U.S. Tax Court, where the partnership and its tax maters partner have already filed a petition for readjustment of the FPAA.

• In perhaps the most ominous development for individuals involved with these claimed deductions, the Department of Justice announced the First Federal Indictment in Cases Involving Syndicated Conservation Easements. The first paragraph of the June 9, 2021 press release states:
   

  A federal grand jury sitting in Atlanta, Georgia, returned an indictment today charging an Atlanta certified public accountant with one count of conspiracy to defraud the United States; 24 counts of wire fraud; 32 counts of aiding or assisting in the preparation of false federal tax returns; and five counts of filing false federal tax returns relating to a wide-ranging, abusive tax shelter scheme. 

Lloyd Mayer

First Effects of the AFPF Donor Disclosure Decision and Additional Analysis

The first effects of the Supreme Court's decision in Americans for Prosperity Foundation v. Bonta are now being felt, although it will take years for the full effects of this landmark donor disclosure case to be realized. 

Not surprisingly, California quickly posted the following notice on its Charities webpage in recognition of its loss:

Effective July 1, 2021, the Registry of Charitable Trusts will no longer require the filing of Schedule B to the IRS Form 990 as part of the registration and annual reporting requirements.

New Jersey, which has a filing requirement similar to California's, announced it would not be enforcing its requirement on its Charities Registration Section webpage, saying:

In light of the United States Supreme Court’s recent decision in Americans for Prosperity v. Bonta, the Division's Charities Registration Section has determined that the requirement that charities submit the Internal Revenue Service (IRS) Form 990 Schedule B upfront as part of their initial and yearly registrations can no longer be enforced. The Division will therefore be revising its rules, and in the interim will not be taking enforcement action based on the failure to include Schedule B or an equivalent donor schedule in such registrations. The Division will deem any entities that were previously deemed non-compliant solely because they failed to submit Schedule B or an equivalent donor schedule to be in compliance with registration requirements. All other regulations at N.J.A.C. 13:48-1.1 et seq. remain in effect and the Division continues to require the submission of all other schedules and statements.

And as already noted in this space, New York has also suspended collection of that schedule pending review of the decision. Both New York and New Jersey faced legal challenges from the Liberty Justice Center to their collection of the schedule, which may have pushed them to get these notices out quickly. No word yet on whether Hawaii, which is the other state with a similar requirement, will follow their lead. (Ballotpedia also identifies Kentucky as having such a requirement, but filings in the AFPF litigation indicate this is not accurate.) Coverage: The NonProfit Times.

For recent, in-depth analysis of the possible further effects of the decision, see Americans for Prosperity Foundation v. Bonta: Questions and Answers, written by Professor Bradley A. Smith (Capital University) for the Institute for Free Speech. One interesting aspect of his analysis is his take on the possible effect on the federal tax law donor disclosure requirement (operationalized through Schedule B) (footnotes omitted):

Does This Mean Nonprofits No Longer Have to File Schedule B With the IRS?

No. In 2020, the IRS repealed the requirement that donor names and addresses be reported on Schedule B for most nonprofits, but not for those operating under Sections 501(c)(3) or 527 of the Internal Revenue Code. The AFPF majority specifically noted that, “revenue collection efforts and conferral of tax-exempt status may raise issues not presented by California’s disclosure requirement.”

It is hard to say how the courts would respond to a challenge to the IRS’s Schedule B filing requirement. Such a challenge would now be analyzed under the AFPF framework, meaning the IRS would have to show an important need for the information and that the demand was narrowly tailored. However, as 501(c)(3) donors claim a tax deduction, the IRS would likely argue that the information is needed to ensure tax compliance – i.e., that the donations claimed by individual filers are actually received by charities. Given the potential revenue consequences, and a more direct connection between the information sought and the potential fraud than existed under California’s policy, courts might still uphold the rule, as the majority appears to suggest.

As often happens with Supreme Court decisions announcing new or clarified standards of review, how lower courts interpret the case going forward will be almost as important as the case itself.

Lloyd Mayer

Nonprofit Scholar Lester Salamon Dies at 78

As the Nonprofit Times reports: "

"Lester M. Salamon, a pioneer in the study of nonprofits and a prolific author about civil society and philanthropy, died on Friday at his home in Arnold, Md. He was 78. The cause of death was not announced.

Salamon was Professor Emeritus at the Johns Hopkins University and was director of the Johns Hopkins Center for Civil Society Studies (CCSS). “While Dr. Salamon’s passing catches many of us off guard, true-to-form, he was actively working until the very last possible moment. His dedication, energy, and passion will be hard to match,” the center officials said via a statement issued today.

The statement continued: “Our collective loss will resonate across the field of nonprofit and third sector research in the United States and throughout the world. Dr. Salamon pioneered the empirical study of the nonprofit sector in the United States and then globally in partnership with extended network of colleagues.”

Nonprofit Energy Efficiency

I'll admit off that bat that I haven't read through all of the 2,700-page infrastructure bill that the Senate passed last week. But on Twitter, Deseret News religion reporter Kelsey Dallas called my attention to a provision about halfway through the bill.

Section 40542 would create what it terms an "energy efficient materials pilot program." Specifically, it directs the Secretary of Energy to create a pilot program to help tax-exempt organizations increase the energy efficiency of buildings they own (and specifically it targets roofs, lighting, windows, doors, and HVAC systems).

The legislation is light on details about the program. But it appropriates $50 million for the pilot program, which is to run from 2022-2026. Organizations that are exempt under section 501(c)(3) can apply for grants of up to $200,000. The specific criteria by which the Secretary will choose which grants to award aren't established in the legislation but the legislation creates a broad structure for qualification. Grants are to be based on the energy savings the project achieves, the cost-effectiveness of the use of energy-efficient materials, the tax-exempt's plan for evaluating, measuring, and verifying energy savings, and the tax-exempt's financial need.

Continue reading

White House Announces New Religions Affairs Leaders, Including First Islamic Religious Freedom Ambassador

The White House announced Friday (July 30) a slate of nominations and appointments for top religious affairs roles, including the first Muslim American nominated to be the U.S. Ambassador-at-Large for International Religious Freedom.

According to a report by the Religious News Service (RNS), President Biden will select Rashad Hussain as his nominee for that post, filling a State Department slot vacant since former Kansas governor and U.S. Senator Sam Brownback left at the close of the Trump administration. Hussain, who would need to be confirmed by the Senate, currently works as director for Partnerships and Global Engagement at the National Security Council.

Mr. Hussain previously served as White House counsel under President Barack Obama, as well as U.S. special envoy to the Organization of Islamic Cooperation and U.S. special envoy for the Center for Strategic Counterterrorism Communications, among other roles.

Commenting on the upcoming nomination, Saeed Khan, an expert on American Muslim communities at Wayne State University, stated: “Rashad’s appointment demonstrates not only the importance the Biden administration places on religious freedom, it also shows the importance of the Muslim world to the administration both in terms of combatting Islamophobia and also promoting religious freedom in Muslim majority countries. Rashad’s background will allow him to have a frank discussion with Muslim majority countries about religious freedom.”

Anila Ali, a co-founder of the American Muslims and Multifaith Women’s Empowerment Council Iftar who has worked with Hussain in the past, also celebrated his nomination. “As AMMWEC, and as a woman leader, I look forward to working with him because women play an important role in peace-making,” Ali said. “He has worked with Muslim communities during the Obama period and we hope his relevant experience is going to make him a voice for all of us.”

According to the RNS report, President Biden is also expected to nominate Deborah Lipstadt as the next U.S. special envoy to monitor and combat antisemitism. Lipstadt is a professor at Emory University in Atlanta and a prominent Holocaust historian. She is the author of Antisemitism: Here and Now and is known for successfully defeating a libel suit brought against her by Holocaust denier David Irving.

Commenting on the expected nomination of Prof. Lipstadt, Mark (Moishe) Bane, president of the Orthodox Union, had this to say:  “She is a leader with great moral courage; her dedicated work, clear voice in fighting Holocaust denial and preserving the memory of the attempted destruction of the Jewish people make her an exemplary choice for this role.”

In addition, President Biden plans to appoint two new commissioners to the United States Commission on International Religious Freedom: Khizr Khan and Rabbi Sharon Kleinbaum. 

Khan became famous in 2016 when he and his wife, Ghazala, spoke during the Democratic National Convention as “Gold Star” parents, discussing their son, Humayun, a U.S. Army captain who died in Iraq in 2004. Mr. Khan, the founder of the Constitution Literacy and National Unity Project, runs his own law practice and has authored three books, including This is Our Constitution: Discover America with a Gold Star Father.

Kleinbaum, for her part, already served as a USCIRF commissioner in 2020 and leads the Congregation Beit Simchat Torah in New York City, a community that centers LGBTQ people. A human rights advocate, she also sits on Mayor de Blasio’s Faith Based Advisory Council and serves on New York City’s Commission on Human Rights. In addition, she is a board member of the New York Jewish Agenda and the New Israel Fund.

Prof. Vaughn E. James, Texas Tech University School of Law

Kalamazoo Foundation for Excellence Receives $400 Million Gift

As we enter the weekend, here is some news that makes the heart glad:

The City of Kalamazoo, Michigan, has announced a $400 million endowment gift to the Kalamazoo Foundation for Excellence (FFE) from longtime residents who wish to remain anonymous.

Created in 2017 by the city commission to stabilize the city's budget, lower property taxes, and address poverty, the foundation aimed to raise a total of $500 million by 2019. The new commitment, to be funded over a ten-year period, will establish a $500 million endowment and enable the city to balance its budget, maintain the 2017 property tax decrease for home and business owners, and support projects that address intergenerational poverty, economic development, parks improvements, youth development, affordable housing, and neighborhood infrastructure.

Speaking upon the announcement of commitment, Kalamazoo city manager and FFE co-founder and board president, Jim Ritsema, stated:  "This remarkable gift is like none other. This is to our knowledge the largest gift in history to support a municipality."

"It is my hope," said Kalamazoo mayor, David Anderson, "that FFE can serve as a model to transform how we live together in community in a way that gives all of us more hope for the future."

FFE was launched with an initial donation of $70.3 million from William Johnston, head of the Greenleaf Cos., and William Parfet, retired chairman and CEO of MPI Research Co. The foundation has since received gifts including $57 million and $28.2 million from the Stryker Johnston Foundation. To date, the foundation has invested more than $120 million in support of efforts to address needs and projects identified by residents.

Prof. Vaughn E. James, Texas Tech University School of Law 

Study: Household Charitable Giving Continues to Plunge

The Giving Environment: Understanding Prepandemic Trends in Charitable Giving, a new study by the Indiana University Lilly Family School of Philanthropy at IUPUI, examines giving patterns across the past two decades from five nationally representative studies and concludes that giving to charity by U.S. households has been on the decline not only since the Great Recession but since the turn of the century: One out of two American households donated to charity in 2018 compared with two out of three in 2000.

The report, based on research funded by the Bill & Melinda Gates Foundation, noted that 66.2% of American households gave charitable contributions in 2000, a figure that dropped by 17% to 49.6% in 2018, the latest year for which data is available. It is the first time that giving has dipped below 50% of U.S. households since the studies began tracking this information. 

It is also the first time since the Philanthropy Panel Study (PPS) began tracking the share of American households that donated to charity in a given year that the participation rate dropped to half.

Commenting on the study's conclusions, Una Osili, Ph.D., associate dean for research and international programs at the Lilly School, stated, “The new research offers clear evidence of a substantial decline in formal charitable giving rates prior to the unprecedented challenges of 2020.” With an eye on crowdfunding and impact investing as additional means of charitable giving, Dr. Osili further stated, “It’s also important to acknowledge the many additional ways individuals are participating in philanthropy today.”

According to a report in the NonProfitTimes which analyzed the study:

Data is not yet available to show whether the decline in participation continued in 2020. The study analyzed the latest data from the PPS, a module of the University of Michigan’s Panel Study of Income Dynamics. The study follows more than 9,000 households over time and provides the most comprehensive data available on giving trends by U.S. households.

Giving participation rates decreased for members of all racial and ethnic groups studied between 2000 and 2019. While giving to religious groups began its decline before the Great Recession in 2008-09 — 46% between 2000 and 2004 to 29% in 2018 — giving to secular causes didn’t begin to dip until after the economic downturn of 2008-09. In 2008, about 57% of households donated to secular causes, down to 52% in 2010, and a low of 42% by 2018. The decline in average amount donated to religious causes ($1,107 in 2000 to $771 in 2018) has outpaced the decline in average amount given to secular causes ($684 in 2000 to $509 in 2018).

The Times continues:

The largest drops in giving participation were found among Hispanic households, from 44% in 2000 to 25.5% in 2018, about 18.5%. During the same period, giving by Black households declined from almost 49% to less than 33% (16%) while participation by White households dropped from 71% to 58% (13%).

About one-third of the decrease in participation from 2000-16 can be directly attributed to shifts in income, wealth, and homeownership, according to the report’s authors, suggesting that factors like interpersonal trust, empathy and compassion, among others, also may play a role.

The General Social Survey (GSS), which includes questions about interpersonal trust, was another study examined for the report. It indicated that trust and giving participation rates declined simultaneously between 2002 and 2014:

The drop was more severe among Americans 30 and younger than among those older than 30. Younger Americans in 2002 reported giving participation of 84.5% with a 24.7% trust rate, compared with 78.9% and 18.6%, respectively, in 2014. Although the correlation does not mean that the decline in trust helped cause the decline in giving participation, it suggests there may be a relationship, according to researchers.

Now, that is something to think about.

Prof. Vaughn E. James, Texas Tech University School of Law

 

 

2021 Outstanding Nonprofit Academic Award Recipient: Professor Priya Baskaran (American University)

I have been slow in getting to this, but last month the Nonprofit Organizations Committee of the ABA Business Law Section announced its 2021 Outstanding Nonprofit Lawyer Award recipients. While most of the recipients are practicing lawyers, each year the Committee awards an Outstanding Academic Award, This year's award went to Assistant Professor Priya Baskaran at American University's Washington College of Law. Here is her bio from the award announcement:

Priya Baskaran is an Assistant Professor of Law and Director of the Entrepreneurship Law Clinic (ELC) at American University Washington College of Law. Professor Baskaran is the founder and current director of the ELC, which provides free transactional legal services to organizations dedicated to economic justice and revitalization in greater Washington, D.C. Prior to joining the faculty at American University Washington College of Law, Professor Baskaran was an Associate Professor at West Virginia University College of Law where she taught in the Business Law curriculum and served as the Director of the Entrepreneurship & Innovation Law Clinic (EILC). Professor Baskaran has dedicated her teaching career to furthering economic justice in both urban and rural communities through transactional law. In West Virginia, she launched a novel program to address access to justice barriers faced by nonprofits and community organizations. Professor Baskaran partnered with Legal Aid of West Virginia to train transactional pro-bono attorneys and expand legal services across the state. As part of this collaboration Professor Baskaran provided ongoing training for Legal Aid attorneys on nonprofit organizations and relevant tax regulations. She also served as co-counsel for cases, assisting Legal Aid attorneys in more complex representations. In addition to her work with rural communities, Professor Baskaran also taught in the Social Enterprise & Nonprofit Law Clinic at Georgetown University Law Center where she was a Visiting Professor and Supervising Attorney. Professor Baskaran previously worked as a Staff Attorney for the Community and Economic Development Clinic at the University of Michigan Law School, where she provided transactional legal services to community-based organizations, non-profits, and small businesses in the City of Detroit.

Professor Baskaran’s publication and advocacy record reflects her passion for pursuing economic justice through transactional lawyering. She has written extensively on using transactional law and social enterprise to further economic justice. She has also worked closely with nonprofit organizations advocating for economic enfranchisement of returning citizens, including testifying before the West Virginia State Advisory Committee for the U.S. Commission on Civil Rights. As a teacher, Professor Baskaran encourages her students to embrace opportunities to facilitate change and support the public interest through transactional lawyering. She reminds students that such opportunities are not just limited to public interest careers, but through meaningful pro-bono engagements available to all attorneys—including those in traditional corporate practice.

Professor Baskaran is a graduate of New York University and the University of Michigan Law School.

Lloyd Mayer

Accelerating Charitable Efforts Act, a Michigan DAFs Study, and DAF-Critical Media Pieces

The past month has seen a number of significant developments relating to donor advised funds, including the introduction of the Accelerating Charitable Efforts Act ("ACE Act") in Congress, a study of Michigan community foundation DAFs, and media criticism of various uses of DAFs.

Senators Angus King (I-Maine) and Chuck Grassley (R-Iowa) announced the introduction of the ACE Act in early June. The legislation aligned with the priorities and some of the proposals by the Initiative to Accelerate Charitable Giving. Some organizations quickly expressed strong opposition, including the Council on Foundations and the Philanthropy Roundtable. Others reserved judgment, awaiting further study and input from their members, including Independent Sector and the United Philanthropy Forum, although they joined a letter from some critics expressing concerns about the Act. Coverage: Devex; MarketWatch.

Also last month, the Council of Michigan Foundations released a study titled "Analysis of Donor Advised Funds from a Community Foundation Perspective." Here are its Key Findings:

• DAFs compose a considerably smaller percentage of endowments of Michigan community foundations compared to community foundations nationwide. The median community foundation in the United States holds roughly one in four dollars of its endowment on behalf of a DAF — compared to one in ten for Michigan’s community foundations.

• The median Michigan DAF experienced investment returns consistent with the median Michigan community foundation. DAF gains were slightly higher, and losses slightly greater, than the median community foundation’s results — suggesting that the median DAF accepts more risk with the opportunity for higher return.

• The median payout rate of all Michigan DAFs during 2017–2020 is 2% lower than the median Michigan private or community foundation. However, when only including DAFs that made a payout during a given year, the median DAF payout rate moves to 2% or more higher than the median private or community foundation payout rate.

• In any given year included in this study (2017–2020): 
  • One in ten Michigan DAFs received inbound contributions but made no outbound distributions (grants).
  • More Michigan DAFs made a distribution (more than 60%) than received an inbound contribution (roughly 40%).
  • Although an average of one in four Michigan DAFs was quiet (inactive) in any single year, across the four study years less than 10% of all Michigan DAFs were quiet in every year. These quiet DAFs hold less than 5% of total DAF assets in the state.
  • DAFs that were active in every year 2017 through 2020 — with a contribution, distribution, or both — comprised the majority of Michigan’s DAFs (59%), received nearly all of the contributions (96%), made nearly all of the distributions (88%), and held nearly all of the assets (82%).

• In 2020 (the most recent year available), just under half (43%) of Michigan’s DAFs paid out 5% or more of their balance, and almost a third (32%) paid out 9% or more.

• Looking at the type of DAF:
  • Michigan’s DAFs are nearly evenly divided in both number and total assets between endowed and spendable DAFs, with endowed DAFs holding just over 50% of all assets. However, spendable DAFs comprise nearly three-quarters of all contributions and distributions.
  • One-quarter of Michigan’s spendable DAFs distribute nearly half of their balance in any given year, and one in every ten spendable DAFs distributes almost all of the available balance (80% or more) in any given year. 

• Out of the approximately 2,600 DAFs housed at Michigan’s community foundations, only 2% were established by a private foundation. Balances, contributions, and distributions were also all in single digit percentages. Therefore, private foundation-established DAFs are rare within Michigan’s DAF universe.

• There is evidence that DAFs responded to the crises in 2020.
  • Two-thirds of all DAFs made distributions in both 2019 and 2020, with just over one-third (35%) increasing both the dollars distributed and the payout rate in 2020 compared to 2019.
  • Nearly one in five distributed dollars in 2020 came from DAFs that made no distributions during 2019.
  • The median distribution from a Michigan DAF rose from $8,500 in 2019 to $9,750 in 2020.

Finally, there have been several news stories and opinion pieces including criticism of DAFs. These included a N.Y. Times story "How Long Should It Take to Give Away Millions?",  an L.A. Times  editorial "Charitable donations are a form of influence-peddling. And they should be stopped" (use of DAFs to avoid California's legally required public disclosure of the sources for donations requested by politicians), and  a Daily Beast story "Christian Billionaires Are Funding a Push to Kill the Equality Act" (focusing on donations from the DAF sponsor National Christian Charitable Foundation).

Lloyd Mayer

Mayer: Justices Open The Door Wider For Donor Info Law Challenges

I have written a detailed analysis of last week's Supreme Court donor disclosure decision, Americans for Prosperity Foundation v. Bonta. It is available at Law360. Here are the first several paragraphs:

On July 1, the U.S. Supreme Court issued its opinion in Americans for Prosperity Foundation v. Bonta, striking down as unconstitutional California's requirement that charities registered in that state submit Schedule B to Form 990/990-EZ/990-PF, the federal tax schedule with identifying information for major donors, to the state on a confidential basis.

The decision not only prevents California from requiring all charities registered in that state to provide this information but also has implications for other donor disclosure requirements. Such requirements include ones imposed by a handful of other states as part of their regulation of charities, the federal tax law requirement that charities exempt under Internal Revenue Code Section 501(c)(3) and political organizations exempt under Section 527 disclose their donors to the Internal Revenue Service and, for private foundations and political organizations, also to the public, and federal and state donor disclosure laws relating to elections.

My read of the opinion is that it contains two significant holdings that will both encourage future constitutional challenges to these requirements and give those challenges a better chance of succeeding than they had under prior rulings.

Lloyd Mayer

Winner-Take-All Philanthropy

About two weeks ago, I read a New York Times article about the latest round of MacKenzie Scott's philanthropy. The article caught my eye for two reasons: first, a $2.7 billion round of donations is massive. And second, a lot of the money was going to arts organizations (and, as the article noted, dance organizations).

At this point, I kind of have a long history of attending dance performances. I'd been to very few before I moved to New York and met my now-wife. I'm more of a music person, personally, but my wife is a dancer and a dance teacher. So I'm familiar with several of the names on this latest round of funding.

And what was interesting to me was the framing. The donations were framed as being made to "organizations[] which are themselves historically underfunded." Which is hugely laudable and maybe not entirely accurate. Two names especially caught my eye: Alvin Ailey ($20 million) and Jazz at Lincoln Center (some amount that I can't find online in a quick search).

Continue reading

David Geffen, Yale, and Naming Rights

One June 30, Yale announced that its drama school had received a $150 million gift from David Geffen. With that gift, Yale has eliminated tuition for its drama students. It explained that his gift has "remov[ed] financial barriers to access."

According to the school, the $150 million donation is the largest in the history of American theater. And when you make the largest gift in the history of American theater, you get some benefits. Geffen's benefit? The Yale drama school has renamed itself--it is now the David Geffen School of Drama at Yale.

This isn't the first time a wealthy donor has gotten their name put on something they donated to, of course. It's not even the first time David Geffen has gotten his name on something: Lincoln Center's Avery Fisher Hall has been David Geffen Hall since he gave $100 million to Lincoln Center in the mid-2010s (or at least since Lincoln Center bought back the naming rights from the Fisher family).

Continue reading