SCOTUS Affirmative Action Fallout: RI-Based Charity Halts Race-Based Grant Making

SCOTUS Affirmative Action Fallout: RI-Based Charity Halts Race-Based Grant Making

One organization that we have not discussed previously is a Rhode Island based charitable entity by the name of the Papitto Opportunity Connection, or POC. This group does a lot of charitable work in the Rhode Island area, and is unique in that it does not accept donations. Rather, all of its funding comes from its founders, Ralph and Barbara Papitto. Ralph was a successful Rhode Island businessman who passed away in 2019, and in 2020 Barbara started  POC:

The Papitto Opportunity Connection (POC) provides grants and scholarships to unique and narrative changing programs that are designed to promote diversity, equity and inclusion through new, innovative, creative and thoughtful efforts. We operate differently than many foundations, and we do so purposefully.

First, we actively engage with and listen to the people who would benefit most from the investments made by POC. We regularly have conversations, small and large, across the Ocean State in the neighborhoods where our investments can make a difference. By listening and doing our homework, we are better able to work with non-profit community organizations, individuals and entrepreneurs who have game-changing ideas.

Second, we use a “Trust-based Philanthropy Approach” that is based on open, honest, and transparent communication. We collect data via our proprietary 501Database, and annually ask grantees to provide responses to reporting questions that focus on outcomes achieved as a result of funding.

Third, POC is a private family foundation that does not accept donations from any individual or organization under the Internal Revenue Service Code. That means we don’t raise funds to support our work. All of our funds come from our founder.

Students for Fair Admissions

As you know, in June the U.S. Supreme Court ruled, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, that universities could no longer use race-based preferences, or affirmative action, as a factor in university admissions: Supreme Court: Harvard and UNC Affirmative Action “invalidated under the Equal Protection Clause of the Fourteenth Amendment”:

The U.S. Supreme Court has dealt a blow to race-based affirmative action in college admissions and by implication elsewhere, putting to an end a narrow carve-out for higher education that had permitted colleges and universities to engage in otherwise unlawful conduct in the name of promoting diversity.

The reason we said that there might be “implication[s] elsewhere” is that some of the language in the opinion is pretty sweeping and quite damning regarding using race to decide anything:

Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies without regard to any differences of race, of color, or of nationality—it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal….

Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality….

Racial discrimination is invidious in all contexts….

One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities….

And of course, famously, Justice John Marshall Harlan. the lone dissenter in Plessy v. Ferguson, which said that “separate but equal” schools were constitutional, said the following:

In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

And there is also the other famous quote from Chief Justice John Roberts, author of the Harvard Students for Fair Admissions opinion, from an earlier case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

POC Puts Grant Programs on Hold

So with that background, we noted with interest an early August a Providence Journal article which reported that POC was putting its charitable activities on hold in light of the U.S. Supreme Court’s Students for Fair Admissions opinion: This foundation was established to help communities of color. Now its grants are on hold:

A local foundation that was created to support communities of color and indigenous Rhode Islanders has stopped awarding funds in light of the U.S. Supreme Court’s decision to overturn affirmative action.

The Papitto Opportunity Connection, or POC, wrote to its current and prospective grantees July 24 to announce the pause in funding as it conducts a legal review. That review will determine whether the foundation changes its grant processes.

“Until we fully understand what POC can do, even as a private foundation, we have decided to put new grants on hold, including those grant requests received in June,” the letter from POC Managing Trustee John Tarantino read. “Previous multi-year approved grants will be honored, as they were made in accordance with the law at that time. We recognize the impact of delay on those who have requested funding, and we will endeavor to move as quickly as possible to address this situation.”
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Tarantino said he did not initially think the high court’s decision would affect POC’s funding choices, but the majority opinion of the justices made him think the decision was broader than schools.

“They say, for example, that if there is a contract and the contract is given in such a way that it favors a particular race or disfavors a particular race, that also is likely a violation of the law,” Tarantino said. “I read that immediately and I started to get concerned.”
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POC is undertaking a legal review of the court’s decision and aims to have it completed this month. Tarantino emphasized that the foundation will not stop giving out funds and will still give out the money it has available for grantees. (Tarantino did not say how much money that amounts to, but said POC’s annual budget is between $16 million and $19 million. That’s a flexible number that covers two rounds of grants, scholarships, sponsorships and multi-year grants. Multi-year grants already made will not be affected as they were offered before the court’s decision.)

Tarantino said POC’s may need to expand its criteria for grantees.

Legal Insurrection Investigates Further

We expected there to be a follow-up article in the Providence Journal some time in September or earlier this month explaining whether POC had, or had not, resumed its charitable funding activities after analyzing Students for Fair Admissions, but we have searched in vain.

So, on Monday, on behalf of the Legal Insurrection Foundation, Professor Jacobson sent the following email to Gregg Perry, the Director of Grants and Public Relations for POC:

Can you tell me whether POC still has a pause on its race-based grant making, as mentioned in various news reports last summer, e.g. https://archive.ph/VUo0k.

What is the current status?

Thanks,

William A. Jacobson

The next day Mr. Perry responded as follows:

Mr. Jacobson –

In July 2023, the Papitto Opportunity Connection paused grantmaking following the United States Supreme Court’s decision in two cases challenging affirmative action at universities, SSFA v. Harvard and SSFA v. UNC. The Court ruled that the programs violated Title VI and the Equal Protection Clause, respectively, by discriminating in, among other things, the admissions processes because the programs in some way favored applicants based on race.

At the time we paused grantmaking, we did so in order to allow POC’s legal counsel the opportunity to research the issues and provide guidance to us on how to best proceed to ensure both POC and our grantees were operating within the law.

In September, we received advice from POC’s legal counsel on the current state of the law and recommendations on how we can move forward while remaining committed to our founding principles. At that time, we decided that, going forward, we will support initiatives that are designed to foster diversity, equity, inclusion and belonging but that do not condition eligibility on race, do not make decisions based on race, and do not exclude individuals based on their race. Our legal counsel is continuing to monitor developments in the law and we will continue to evaluate our work to ensure it comports with the law.

Regards,
Gregg Perry

Conclusion

We applaud POC for taking a cautious, reasoned approach to the Supreme Court’s Students for Fair Admissions opinion. It is clear from that opinion that the landscape for using race as a criterion in student admissions has indelibly shifted for the foreseeable future. It is also clear that other areas of the law are affected as well, and we are happy that POC will be conducting its charitable activities in ways “that do not condition eligibility on race, do not make decisions based on race, and do not exclude individuals based on their race.”

We will keep you posted on related developments moving forward.

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