Exciting Update Re Defending Equity Initiative
A brief but exciting update re Defending Equity Initiative, the nonprofit affiliate we established last year (as described in depth in this series of posts on how to form and establish an exemption for a nonprofit) to defend progressive nonprofits fearing attacks from the administration. Our tax exemption application (see a copy of what we filed here, which others are welcome to use as a template for similar work) was very explicit about its plans to provide pro bono support to “organizations under immediate threat based on their activity supporting diversity, equity, and inclusion, immigrants, and progressive values.”
In spite of the persistent hum from some in our section that this language is the sort of thing nonprofits need to avoid and strip from their websites lest the IRS come yanking away their exemption, we received our determination letter from the IRS awarding the organization tax-exempt status as a 501(c)(3). See here.
Of course, the IRS approves the vast majority of the applications it receives — the issuance of a determination letter from the exempt organizations unit is hardly a white flag of surrender from the administration, as much as it would be nice to pretend. But it does underscore a few points we have been trying to make along the way:
The law has not changed in terms of what is a charitable activity. Supporting diversity, equity, and inclusion, supporting immigrants, protecting trans adults, and defending organizations and their rights under law against unlawful attacks by the government are all still charitable and appropriate activities for 501(c)(3) to pursue.
Whatever their intentions might be, the current administration’s actual reach does not match its bluster when it comes to nonprofits. Beyond just this one data point, we have yet to observe any evidence that the IRS is actually waging a ‘war’ on nonprofits. Such a war would take a lot of resources and energy for minimal payoff. We could not have made this application any easier to be ‘flagged and targeted’ if such a thing were happening, yet there is no sign of any interest in contesting our planned work to defend DEI and counter the administration as an inappropriate activity. That is not to minimize or deny the extensive vileness of the administration being perpetrated in so many other aspects of American life. It is just to say that the administration’s authoritarianism takes a lot of energy, expense, and effort — the more we force them to expend that effort instead of just ceding what they want, the less successful their campaign will be.
If and when the status quo changes, and attacks on the nonprofit sector materialize, we will have lots of tools at our disposal and people willing to support. Not only is this one more vehicle that will be available to organize volunteers and potentially even fund litigation to resist the administration, but our work has connected us with many others who are organizing around the same principles that the work must persist, and that it is not the progressive sector that needs to change. We are more confident than ever that, if the administration seeks to make an example of an organization dedicated to DEI or other ‘targeted’ areas, there will be many avenues for progressive funders to line up to support them and many attorneys and others who would volunteer to defend the rule of law.
The administration gives up… a lot... when its efforts are correctly found to be unconstitutional. Prominent law firms degraded themselves with deals with the Trump administration early on to retain security clearances and avoid retaliation against their clients, even though any self-respecting lawyer would feel confident arguing that those attacks were unconstitutional. Meanwhile, those big firms that resisted the threats from the administration quickly succeeded in court; today, they saw the administration give up its efforts to appeal its loss, effectively conceding that these attempts to bully law firms into compliance were unconstitutional. Just like when, a few weeks earlier, the Department of Education gave up its appeal and entered into a settlement agreement, withdrawing from its “Dear Colleague” letter that it propagated to try to intimidate universities out of DEI. Those threats were found just as unconstitutional as they seemed, and now they have been withdrawn. These concessions by the administration do not go nearly as viral as their threats. In many ways, they have already succeeded by planting in the minds of anxious directors everywhere that they are supposed to be talking their organizations out of doing DEI work, or at least out of doing it loudly.
Obviously, none of the above is any sort of decisive victory. But it is worth taking a moment to note when the law works the way it is supposed to work, and that we don’t need to view every defeat as inevitable.
For now, we’ll just say that we remain very open to new volunteers for a newly recognized 501(c)(3), please reach out here — and, even moreso, we welcome outreach from organizations that need support in response to a live threat from the administration (please reach out here). We have been grateful to have more supply of volunteers than demand for services, but we do hope those nonprofits that are in need of defense from the administration reach out to see if we can help.
