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Is Racial Discrimination Ever Charitable?

Author(s):
Thomas P. Gallanis
Posted:
08-2025
Legal Studies #:
LS 25014

ABSTRACT:

Is racial discrimination permissible for a charity? The question is salient and timely. Our nation faces a stark choice between two competing visions of how the law should assess racial discrimination. One view, articulated by Professor Ibram X. Kendi, among others, is that racial discrimination in favor of members of minority groups is an appropriate response to society’s prior discrimination against them. A competing view, articulated by the Supreme Court in SFFA v. Harvard,  is that racial discrimination is odious tout court: eliminating racial discrimination means ending all of it.

This Essay tackles an aspect of the question that has not received much scholarly attention. The Supreme Court’s decision in SFFA v. Harvard has prompted commentary on racial discrimination and the Equal Protection Clause of the U.S. Constitution and Title VI of the Civil Rights Act of 1964,  the latter of which prohibits discrimination by programs and activities receiving federal financial assistance.  The commentary after SFFA v. Harvard also extends to Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment,  and Section 1981, which prohibits discrimination in, among other things, the making and enforcing of contracts.  Recent actions taken by the Trump Administration vis-à-vis Harvard University raise the issue of racial discrimination as a basis for revoking federal tax-exempt status under Section 501(c)(3) of the Internal Revenue Code.  But little attention has been given to the law of charity, which derives  from the law of charitable trusts. In order to qualify for tax exemption as a charity, a charity must be a charity.  What does and should the law of charity say about racial discrimination after SFFA v. Harvard?

This Essay proceeds in four main parts. Part I examines the law of charity and its requirement that a charity must not violate public policy. Part II explores three Supreme Court decisions salient to public policy and racial discrimination. The public policy limitation in the law of charity derives from the law of charitable trusts, but it is influenced by federal law, including the Court’s decisions; also, state law influences federal law when federal courts determine the issue of federal tax-exempt status. Part III examines the legal landscape after the Court’s decision in SFFA v. Harvard. Part IV proposes a path forward, arguing that the time has come for state and federal courts and taxing authorities to declare that racial discrimination by a charity violates public policy irrespective of the race of the individuals harmed by it. A brief conclusion follows.