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Two recent incidents at two very different places, Liberty University and Georgetown University Law Center, have resurrected a persistent issue for private, nonprofit colleges during election season. How far is too far when it comes to partisan political advocacy?
Private, nonprofit universities, like Georgetown and Liberty, maintain their tax-exempt status under section 501(c)(3) of the Internal Revenue Code, which prevents them, as institutions, from intervening in a political campaign on behalf of or against a specific candidate.
In deference to those regulations, Georgetown University Law Center recently barred students supporting Senator Bernie Sanders’s candidacy for the Democratic presidential nomination from displaying posters and handing out campaign literature on campus. The kind of activity the law school barred is fairly common at many colleges and universities.
On the other end of the spectrum, Liberty’s president, Jerry Falwell Jr., endorsed Republican presidential candidate Donald Trump. Such an act, according to the IRS, would have certainly have been prohibited had he made the announcement in an official university publication, for example. This announcement, though, came in the form of a press release from the Trump campaign with addendums from both Falwell and the campaign emphasizing that his endorsement was personal and not on behalf of the university.
Similar situations tend to pop up in election years. In 2008, for example, St. Catherine University in Minnesota cited its tax-exempt status after disinviting several speakers, both Democrats and Republicans, and holding off publishing an alumni magazine that profiled graduates who were running for office. But some observers think some colleges are too wary of situations that don't actually involve institutional endorsements.
The Foundation for Individual Rights in Education, which has argued for years in such situations that universities tend to interpret the 501(c)(3) campaign regulations too restrictively, sent Georgetown Law a letter asking that its policy be changed.
“Georgetown Law’s total ban on partisan political campaign activity on campus misstates its obligations under Section 501(c)(3) of the Internal Revenue Code,” the letter states. “While the university itself is prohibited from participating or intervening in a political campaigns, in prohibiting campaign activity by its students, Georgetown Law fails to recognize the distinction between institutional expression and that of individual students and student organizations, which are strongly presumed to speak only for themselves and not their institutions.”
In its own statement, after receiving the FIRE letter, Georgetown Law said it is examining its policy and considering changes. “Georgetown Law values political expression, and is committed to encouraging it while remaining true to our obligation as a nonprofit to remain politically neutral,” it said. “As such we place limits on the use of university resources to distribute campaign materials. The Law Center is currently working on new ways to protect our students’ right to advocate for the political candidates of their choice, while still remaining within the bounds that our 501(c)(3) status imposes. We will announce these guidelines in the coming weeks. Meanwhile, we remain committed to the importance of political engagement in the lives of our students.”
Students at private universities like Georgetown do not have the same First Amendment free speech protections that they would at public universities, but, FIRE argues, many institutions say in their handbooks and on their websites that they value the free expression of ideas, and too often they do not live up to those values by overcorrecting in their 501(c)(3) compliance.
“My belief,” said Peter McDonough, vice president and general counsel for the American Council on Education, “is that most private universities will recognize that it is the right of their students as private citizens to engage in political activity, and they want them to do that.”
“These things are going to happen in dining halls and dorms and so forth,” McDonough said. So, “most schools try to figure out how to strike a balance between the prohibitions they must live within and engage and energize civic engagement of students that are there.”
That usually takes the form of rules designed to ensure fair access and opportunity to students or student organizations that support different candidates or issues, he said. But in some cases, adding further restrictions that prevent even the impression of unbalanced institutional support is “a reasonable position to have,” McDonough said. For example, papering spaces with posters or fliers “is a time-honored exercise in political campaigns in all sorts of places,” but even if you ensure groups favoring a certain candidate aren’t favored over others, if one candidate’s supporters get a head start or simply outnumber those of other candidates, “it’ll give the impression that the institution actually endorses that candidate.”
Dartmouth College sees abundant political activity every four years due to its location in New Hampshire, the first primary state. The college is primarily concerned about maintaining a healthy wall between the students’ political activity and actual institutional support.
“Dartmouth does not impose restrictions on student political activity on campus,” said Diana Lawrence, director of media relations at Dartmouth. “There are many active political clubs, and student groups regularly bring candidates and speakers to campus. The only caveat is that, because of our nonprofit status, the students need to be careful to separate their activity from any kind of college endorsement.”
But so long as students don’t use university resources for their political advocacy, stay in line with general rules for campus activity and are careful to be clear that they are not speaking on behalf of the institution, political activity, up to and including distributing fliers in support of candidates or displaying posters, is permitted.
As long as resources aren’t going predominantly to one candidate over another, “it’s not clear to me why we should be looking to curtail [students’] civil participation,” said Andrew Samwick, director of the Rockefeller Center for Public Policy. “We should be encouraging students to participate in the election process … I don’t see why we should err on the side of trying to ban something.”
