TLG Managing Partner Jeff Tenenbaum Quoted in CEO Update Article, “Associations Face New Threats as Diversity Comes Under Attack”

TLG Managing Partner Jeff Tenenbaum was quoted the CEO Update Article, “Associations Face New Threats as Diversity Comes Under Attack.”

“Prominent nonprofit attorney Jeff Tenenbaum has been advising clients and leading webinars on the legal and financial risks nonprofits face, and how to skirt them. The potential hazards, he explains, have three distinct sources: executive orders, court challenges and old laws.”

“Most associations don’t receive federal funds, Tenenbaum noted — but that doesn’t mean they are out of the legal woods. “There’s a kind of fallout, spinoff effect we’re already seeing. What this administration does amplified other people’s efforts, including state attorneys general, state legislatures and private plaintiffs,” he said. Other experts agree that associations that don’t receive federal grants, loans or contracts aren’t automatically home free. A scholarship program that is aimed at a particular sex or racial or ethnic group may face challenges from private entities under Section 1981, for example. Even if the application calls for some boilerplate agreement from the student, that is a contract under the law, and is potentially subject to a challenge, Tenenbaum explained in a webinar on the topic. Yet another threat is possible for associations with tax-exempt status, Tenenbaum said: The administration could decide that such groups, by virtue of their tax status, are getting a kind of financial assistance from the government and thus hold them to the same anti-DEI rules it is imposing on federal contractors or grantees. (That has not happened yet, however).”

“In the Supreme Court decision on race-conscious admissions at Harvard and UNC, Chief Justice John Roberts said universities could still ask applicants how they had overcome adversity — and that it was OK if the would-be student mentioned overcoming race discrimination. Associations can do something similar, Tenenbaum said, awarding scholarships or internships to applicants who have overcome difficulties in their lives to achieve success. “You need to consider changing the eligibility criteria to get at your same basic core values and aims for the program but doing it in a way that tracks with the way the law is evolving,” he said.”