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Email Congress About Campus Censorship Today

By March 3, 2016

Yes, this blog post talks about tax policy. But entertainingly, I promise.

But even if you don’t want to read further, please do this: Send your stories of campus censorship to the Committee on Ways and Means of the House of Representatives through the committee’s website. Or email: campus.speech@mail.house.gov. The committee is collecting stories of how free speech is being stifled on college campuses and needs to hear from you, Torch readers.

Now, if you want to know the fascinating reason why the committee is engaged in this issue, read on.

When I give presentations, I always warn students that speech codes lurk in unexpected places such as security rules and even trademark policies. Now that the 2016 presidential election is upon us, another unlikely tool of censorship has come to the fore: Section 501(c)(3) of the Tax Code, that makes nonprofit organizations—including colleges and universities—exempt from taxation. (All private nonprofit universities have 501(c)(3) status. Some public universities do as well, but all public colleges are tax exempt as government institutions.) The IRS bestows tax-exempt status on schools because their educational mission benefits the public good.

This wouldn’t be a FIRE issue except for the fact the IRS does not allow tax-exempt institutions to engage in “political activity.” Everyone agrees this means colleges and universities as entities can’t endorse a political candidate or use their resources to benefit one candidate over another. As FIRE’s Policy Statement on Political Activity on Campus explains, this prohibition does not extend to students because students and student groups are strongly presumed to speak for themselves, not their institutions.

Nevertheless, colleges and universities have stifled political debate on campus on numerous occasions, especially advocacy for a particular candidate, on the mistaken ground that if Students for [Insert Candidate’s Name Here] is allowed to advocate on campus, the school will lose its tax-exempt status and likely be put out of business.

Educational institutions are, understandably, extremely careful not to do anything that might jeopardize their tax-exempt status. The IRS is equally zealous in making sure that institutions who have this benefit adhere to the rules needed to maintain it. So the incentive for schools to take a “better safe than sorry” approach to the regulations is high—even if it means censoring student speech.

The problem becomes more acute in election years, and 2016 is no exception.

For instance, Alex Atkins, a student at Georgetown University Law Center, was told he and his fellow students could not table on the law school premises to provide information about Bernie Sanders and voter registration because this would allegedly jeopardize GULC’s 501(c)(3) status.

How ridiculous is that argument? Ridiculous enough to attract the attention of Representative Peter Roskam from Illinois, who is chairman of the House Ways and Means Oversight Subcommittee in Congress.  The Committee on Ways and Means has oversight over the IRS. Chairman Roskam held a hearing yesterday on “Protecting the Free Exchange of Ideas on College Campuses” to consider the link between tax-exempt status and censorship on college campuses. (A video of the hearing is on the subcommittee’s website.)

I was honored to be one of the witnesses who appeared before the committee, along with Georgetown law student Alex Atkins. In my written testimony, I outlined the problem and the 13 times since 2008 when FIRE has had to intervene formally to restore students’ right to express political beliefs on campus after the schools cited IRS regulations to justify censoring student political speech. In my oral testimony, I summarized the problem as follows:

Confusion over IRS guidelines is the likely cause of this censorship. General counsel are not going to allow political activity that they fear would endanger the school’s tax-exempt status. As long the IRS guidance is ambiguous, censorship will win out every time. This subcommittee could be instrumental in solving this problem. Were the IRS to clarify that viewpoint-neutral allocation of resources for political speech does not endanger an institution’s tax-exempt status, it would be a huge step forward in preserving free speech on campus.

Are colleges and universities taking advantage of unclear IRS guidance to use preservation of their tax-exempt status as an excuse to censor speech on campus? Two points from yesterday’s hearing make it look that way. First, although GULC refused to look at its policy on partisan political activities when Alex Atkins pointed out it was overbroad, and agreed to review it only after FIRE wrote a letter, the institution sprang into action once the hearing was announced. It submitted a letter to the subcommittee for the record stating that GULC had revised its policies regarding political activity. It also admitted that its previous policies had been based on an “overly cautious interpretation of the legal requirements governing the use of university resources.”

Second, Professor Frances Hill, a tax expert from the University of Miami School of Law, ended her opening testimony at the hearing by stating that “students can do pretty much whatever they want.” As she explained, high-level university administrators need to be careful what they do or say, because it would be more natural for people to assume that they speak for the university, which must remain nonpartisan. But no one thinks that your average student is a spokesperson for his or her school, and thus there is no danger of confusion.

If the IRS were to state clearly that its prohibition on political activity does not extend to students or student organizations, then universities would not be able to get away with justifying censorship based on their obligations as tax-exempt institutions. With Super Tuesday behind us and the 2016 race beginning to take shape, now is the time to clarify that political activity restrictions do not apply to students—only to the colleges and universities themselves. Congress is now aware of this problem.

Please send your stories into campus.speech@mail.house.gov to keep up interest so we can get rid of this tool of censorship on campus.

Schools: Georgetown University Cases: Georgetown University Law Center: Students Prevented from Campaigning for Democratic Presidential Candidate Due to Ban on Partisan Political Speech