‘Stanford Review’ Questions University’s Political Speech Policy
May 21, 2012
Last week, Gideon Weiler of student newspaper The Stanford Review penned an article criticizing Stanford University's policy governing "political activities." Weiler wrote:
Stanford University has an ambiguous set of policies regarding student political activism on campus.
Students running for public office, for example, are not allowed to use campus resources for their campaign efforts. As a result, Stanford forbids students from using Zimbra email accounts to send campaign related messages.
University regulations make it that much more challenging for student politicians to succeed. It is hard enough as it is, for students such as Roman Larson, who ran for his district's school board in Wisconsin, or Michael Tubbs, who is running for city council in Stockton, to get elected so young.
Weiler wondered why Stanford's policy hadn't caught our interest here at FIRE. We're happy to explain our take on the policy—and as the election season hits its stride, it's worth revisiting our Policy Statement on Political Activity on Campus, updated for the 2012 races.
First, let's look at Stanford's policy. Political activity at Stanford is governed by Administrative Guide Memo 15.1 (PDF). Here's the summary:
While all members of the University community are naturally free to express their political opinions and engage in political activities to whatever extent they wish, it is very important that they do so only in their individual capacities and avoid even the appearance that they are speaking or acting for the University in political matters.
This isn't concerning to us here at FIRE for two reasons. First, it makes clear that students and faculty enjoy full freedom to engage in political expression. Second, it's an accurate expression of Stanford's obligations as a 501(c)(3) organization. As we write in our Policy Statement:
Despite the seeming severity of the restrictions on political activity at private colleges and universities imposed by the requirements of section 501(c)(3), however, it is extremely important to note that these prohibitions apply to the institution itself and those reasonably perceived to be speaking on its behalf, not to individual students, faculty, or staff engaged in clearly individual, unaffiliated activity. In a 1994 statement, the IRS made clear that "[i]n order to constitute participation or intervention in a political campaign ... the political activity must be that of the college or university and not the individual activity of its faculty, staff or students."
Further, we explain that
Students, student groups, and faculty members do not endanger the 501(c)(3) status of private colleges and universities by engaging in partisan political speech when such speech is clearly separate and distinct from the institution's views or opinions. The presumption is that such speech does not represent the views of the university as an institution. Moreover, this presumption applies with particular vigor when speakers clearly indicate that they are not speaking for the university. The risk of appearance of institutional endorsement may be greater when the speaker is a high-level university administrator, but decreases as one moves down the chain of command to lower-level administrators. Additionally, this risk does not apply to students or student groups, or to faculty who do not hold a position as an administrator or department head.
So Stanford's summary is generally unproblematic, although I'd prefer that it made clear that students can "speak in their individual capacities" as part of a student group without raising 501(c)(3) problems, as well.
Next, let's look at the specific language of Stanford's policy. The relevant part for our interests, Section 2(a)(4), states:
No person supporting candidates for public office or engaging in other political activities may use University space or facilities or receive University support, except in the limited ways described in section 3.a.
And here's Section (3)(a) in full:
3. PERMISSIBLE POLITICAL ACTIVITIES
a. In General — As noted above, the federal, state, and local laws which limit the partisan political activities that can take place in University facilities and with University support in no way inhibit the expression of personal political views by any individual in the University community. Nor do they forbid faculty, students, or staff from joining with others in support of candidates for office or in furtherance of political causes. There is no restriction on discussion of political issues or teaching of political techniques. Academic endeavors which address public policy issues are in no way affected.
Because the University encourages freedom of expression, political activities which do not reasonably imply University involvement or identification may be undertaken so long as regular University procedures are followed for use of facilities. Examples of permissible activities are:
1) Use of areas, such as White Plaza, for tables, speeches, and similar activities.
2) Use of auditoriums for speeches by political candidates, but subject to rules of the Internal Revenue Service, the Federal Election Commission, and the California Fair Political Practices Commission, and other applicable laws. Arrangements must be made with University Events & Services. (See also Guide Memo 82.1, Public Events, for more information.)
To reiterate, because tax and political compliance laws impose restrictions, and even prohibitions, on certain political activities and on the use of buildings and equipment at a non-profit institution such as the University, any such activities must be in compliance with these legal requirements.
Individuals taking political positions for themselves or groups with which they are associated, but not as representatives of the University, should clearly indicate, by words and actions, that their positions are not those of the University and are not being taken in an official capacity on behalf of the University.
As written, Stanford's policy does a commendable job of balancing the university's obligation to protect political expression with the need to avoid engaging in prohibited institutional political activity prohibited by the tax code.
So what about The Stanford Review's concern about students running for public office being forbidden from using their Stanford email? Stanford's policy states that "University services, such as Interdepartmental Mail; equipment, such as duplicating machines, computers, and telephones; and supplies should not be used for partisan political purposes." In other words, students running for political office can't conduct campaign business from their stanford.edu email account. Here, Stanford is trying to avoid the appearance of an institutional endorsement for a particular candidate that would arguably be implied by the use of the Stanford account. I think that's fair enough as a good-faith effort to comply with IRS regulations.
The Stanford Review argues that when it comes to what constitutes "partisan political purposes," the line isn't always clear:
Second, the definition of political activism seems overly fuzzy. Stanford can prohibit students from sending out emails if they are running for office, but not if they are organizing a meeting with expressly political purposes. For example, groups such as Stanford Dems, SPER (Students for Palestinian Equal Rights), and SIA (Stanford Israel Alliance) routinely use Zimbra to coordinate events and express political convictions.
Let's look back at the policy. Stanford defines "partisan political purposes" as activities "in support of or opposition to any candidate for elective public office." So, in application, The Stanford Review is right to note that Stanford is on some level engaging in a line-drawing exercise. When it comes to students running for elected office using their Stanford email accounts to run their campaign, the university has determined that this use of resources comes too close to the appearance of an institutional endorsement, but political student groups using their email accounts to discuss candidates or set up meetings is unproblematic.
While this line-drawing may be understandably frustrating to The Stanford Review, it reflects to a significant extent the IRS's attempt to incorporate an element of common sense into its reviews of institutional compliance with the tax code. As we explain in our Policy Statement:
Whether or not a 501(c)(3) organization has engaged in prohibited political activity is an ad hoc determination contingent upon examination of "all of the facts and circumstances of each case." However, in the campus context, the IRS has interpreted the restriction on political activity differently in light of the educational mission of colleges and universities, allowing certain activities (such as a political science class that requires students to work on a campaign, as long as the student, not the instructor, is allowed to choose the campaign; or a political editorial in favor of a candidate published in a student newspaper) that would otherwise likely constitute prohibited activity.
In other words, the IRS is trying to ensure that universities can allow students to engage in political speech without threatening their non-profit exemption, while also making sure that candidates for office don't unfairly benefit from the institutional involvement of universities in the campaign. While there's no bright line, common sense is a good guide: A candidate running for office using her Stanford email account for campaigning is too close for comfort, but students talking about their political preferences over email is part of the daily life of the university and doesn't suggest institutional endorsement. It can certainly be a tricky line to discern, but I don't think Stanford has unfairly or unreasonably cracked down on student political expression in this instance by disallowing candidates from using their university email in their campaign.
Be sure to check out our Policy Statement in full as election season heats up.