After Congressional Hearing, Colleges Still Haven’t Gotten the Point

On March 24, Georgetown University Law Center (Georgetown Law) introduced a new policy on partisan political speech on campus, replacing an earlier policy that effectively banned any campaign-related speech or expressive activity. As FIRE legal intern Alex Atkins wrote last week, the revision came on the heels of a March 2 congressional hearing on freedom of expression on campus, prompted by FIRE’s press release about Georgetown Law’s restrictive policy. The revised policy, however, still burdens a broad swath of student political speech and should make clear to Congress that there is still much more to be done to protect students’ political discourse.

On March 2, the Oversight Subcommittee of the U.S. House of Representatives Ways and Means Committee (the Subcommittee), which has jurisdiction over matters involving the Internal Revenue Code (the Code), held a hearing titled “Protecting the Free Exchange of Ideas on College Campuses.” FIRE’s Director of Litigation, Catherine Sevcenko, testified about the recurrent, nationwide problem whereby colleges and universities restrict student political speech on campus because such expression purportedly endangers the institution’s federal tax-exempt status under the Code. Alex also testified to his first-hand experience at Georgetown Law, where he and his fellow students were prevented from tabling in support of Senator Bernie Sanders’ presidential campaign under the school’s then-existing ban on campaign-related activity. Like many institutions’ partisan speech policies, Georgetown Law’s policy cited Section 501(c)(3) of the Code, which prohibits tax-exempt organizations from becoming involved in campaigns, to justify its restrictions on student speech.

On this last point, the Subcommittee heard testimony from the University of Miami School of Law’s Frances R. Hill, professor of federal tax law and co-author of a treatise on exempt-entity taxation. Professor Hill told the subcommittee (starting around minute 32:45 in the video recording of the hearing), “The IRS has made it abundantly clear that only in the rarest of circumstances would a student be considered the agent of the university,” such that her speech would be attributed to the institution. Student partisan political speech, therefore, generally will not endanger an institution’s tax-exempt status. Professor Hill concluded her opening remarks by stating, “Students can do almost anything.”

Georgetown University also submitted a February 29, 2016 letter to the congressional record from Associate Vice President for Federal Relations Scott S. Fleming to the Subcommittee chair and ranking member. In the letter, Fleming stated that “Georgetown is an institution that cherishes free speech” and that has a “particular orientation toward public service and engagement in the political process….” He acknowledged that Alex and his colleagues’ tabling request caused Georgetown to reevaluate its policies, which “contained an overly cautious interpretation” of Section 501(c)(3) obligations. The new policies, Fleming wrote, would “make very clear that individuals as well as groups are able to reserve tables for organized activities and that all members of our community are able to make reasonable use of University resources to express their political opinions.” He stated that Georgetown Law’s new policies would, in particular, “provide student organizations, ad hoc groups and individual students with access to space for political or other advocacy, including partisan campaigning.” Subcommittee member Rep. Joseph Crowley (D-NY) cited the letter in the hearing (starting at 56:19) to argue that the Subcommittee was “searching for a problem where no problem exists” because Georgetown was revising its policies to “ensure full inclusivity for all of their students.”

Despite these statements to Congress,  Georgetown Law’s new policy continues to rely on Section 501(c)(3) to place significant limits on partisan political activities.

As Alex explained last week here on The Torch, Georgetown Law’s new “Policy on Partisan Political Activities and Lobbying” allows him and his fellow students to engage in the specific activity they had pushed for in the past—namely, tabling in support of the Sanders campaign—but leaves unclear what other partisan activities or resources are open to them. Rather than providing for “reasonable use of University resources,” as promised to Congress, the policy states that community members “generally may not use University-supported resources” for partisan campaign activity. Unlike other types of advocacy, students must submit any request involving “partisan political activity other than tabling using Law Center facilities or resources” to the administration for approval at least a week ahead of time. And while Fleming’s letter promised “access to space” for the partisan activities of individuals, ad hoc groups, and recognized student organizations alike, Alex reported that Georgetown Law turned down his recent request to reserve a classroom for a Sanders event because he wasn’t part of a recognized student group. All in all, Georgetown Law’s new policy appears to fall far short of Fleming’s assurances to Congress.

The kindest explanation for policies like Georgetown Law’s most recent version—vague and unequal in its treatment of similarly-situated students based on partisan content—is that they reflect a strong desire to stay well away from even the remote possibility of endangering the university’s tax-exempt status. In other instances, the invocation of Section 501(c)(3) has seemed much more like a pretext for censoring unpopular speech than a risk-avoidance measure. In either case, it is clear that unnecessary censorship in varying forms, scope, and application will continue to plague college campuses under the guise of Section 501(c)(3) compliance until institutions are pressured to place a higher value on student political discourse in practice, not just in word.

The House Ways and Means Subcommittee on Oversight can help alleviate this problem by encouraging the Internal Revenue Service to issue additional straightforward guidance on the Code on the following points: (1) political engagement and discourse are part of the educational mission of a tax-exempt university; (2) the political activity of students is strongly presumed to communicate students’ individual opinions; (3) absent additional factors that would lead a reasonable person to believe a student is communicating an institutional position, a university’s tax-exempt status is not threatened by students’ partisan political speech; and (4) the use of institutional facilities and resources by students and student groups for partisan political purposes does not threaten tax-exempt status if provided on a content-neutral basis under the same terms and procedures available to all students and groups.