By David J. Butler

Suppose you decide to give away $5 million.

You don’t want your name on a building. You aren’t looking for recognition. You simply want to help a group of young people whom you believe has been overlooked or underserved.

How much freedom should you have to decide who receives your generosity? That is no longer just a philosophical question. It is becoming a legal one.

In the wake of the U.S. Supreme Court’s decision ending race-conscious admissions in higher education, several private scholarship programs have found themselves in court. One lawsuit challenges scholarships offered by the Congressional Black Caucus Foundation because they are limited to Black students. Another challenged scholarships sponsored by the American Bar Association that were created to encourage diversity within the legal profession. The plaintiffs argue that private organizations should not be permitted to award educational benefits on the basis of race any more than public universities may do so.

It is a fair question. But it is not the only question. And it may not even be the first one.

America has always relied on private citizens to solve public problems. Long before government created vast social programs, Americans built hospitals, founded schools, established scholarships and organized charities. They did not try to solve every problem. They chose the problems they believed they could solve best.

That tradition remains one of America’s greatest strengths. Private philanthropy exists because individuals are free to devote their own money to causes they consider worthy. Some foundations fight cancer. Others support military veterans, students from rural communities, aspiring musicians or children with disabilities. Every charitable institution begins with a choice about whom it hopes to help.

That is why the current scholarship lawsuits are more complicated than they first appear.

Public universities and private charitable foundations do not occupy the same place in American life. They are governed by different legal rules and different legal traditions. That does not mean private foundations are free to ignore civil rights laws.

They are not. But neither does it mean the rules governing public institutions automatically answer every question involving private philanthropy.

That is precisely why the courts have work to do.

Unfortunately, much of the public conversation skips over that complexity. Instead, we rush to labels. Discriminatory. Racist. Exclusionary. Once the label is attached, many assume the case has already been decided.

But every scholarship excludes someone. A scholarship for future teachers excludes future engineers. One for military veterans excludes those who never served. A scholarship for students from Appalachia excludes students from Miami.

Eligibility requirements are not unusual. They are the essence of every scholarship.

The real question is not whether a foundation has drawn lines. The real question is why it has drawn them. That is the question before the question.

Consider a foundation created to address the chronic shortage of physicians in rural America. It offers scholarships only to students who grew up in designated rural counties and who promise to return there after medical school.

Thousands of talented students would be ineligible. Yet almost no one would consider those eligibility requirements unfair because they are inseparable from the foundation’s mission. Without them, the scholarship would no longer accomplish what it was created to do.

The current lawsuits are more difficult because race occupies a unique place in American law and history. That reality deserves respect. It also demands careful analysis rather than easy answers.

The courts should not assume that every scholarship serving a particular racial or ethnic community is unlawful. Nor should they assume that every charitable mission justifies every eligibility requirement. Both shortcuts are wrong.

The better question is whether the eligibility rules genuinely advance the charitable purpose — or whether they simply serve as a convenient way to keep others out. Sometimes the answer will favor the foundation. Sometimes it will not. That is exactly as it should be.

The law has long been capable of distinguishing between a legitimate purpose and an illegitimate pretext. These cases deserve that same careful attention, one at a time, on their own facts.

The scholarship lawsuits will eventually be resolved. The larger issue will remain. What kind of society do we want to encourage? One in which private citizens are free to tackle problems they believe matter most, subject to the rule of law? Or one in which fear of litigation discourages them from trying at all?

That is the choice quietly taking shape beneath these cases.

The courts should faithfully enforce our civil rights laws. They should also recognize the indispensable role that private philanthropy has always played in American life. Neither principle should swallow the other.

The goal is not to protect every scholarship. Nor is it to invalidate every scholarship that serves a particular community. The goal is something more enduring: to ensure that private generosity remains both faithful to the law and free to pursue genuine charitable missions.

That begins by asking the right first question.

David J. Butler is an attorney. He is president of Dvash Consulting, LLC and a member of the ownership group of Mid-Atlantic Media, which owns and publishes Philadelphia Jewish Exponent.