Republican members of Congress held a hearing here in D.C. on Wednesday to examine whether some colleges are using their tax-exempt status to suppress free expression on campus — especially when it comes to core protected political speech.
The U.S. House of Representatives Ways and Means Oversight Subcommittee heard testimony from university students, academics and free speech advocates in support of political expression on college campuses.
Subcommittee Chairman Peter Roskam, R-Ill., said in his opening statements that many schools wrongly invoke their tax exemption to stifle political speech on campus, especially during election years.
The vast majority of private universities operate as nonprofit organizations incorporated exclusively for educational purposes and exempt from paying federal income tax under Internal Revenue Code 26 U.S.C. section 501(c)(3). This section restricts qualifying nonprofit organizations from participating or intervening in a political campaign on behalf of, or in opposition to, any candidate for public office.
Roskam said these colleges receive financial benefit based on the educational value they offer to society, but when they suppress speech, Congress has to question whether that educational mission is “really being fulfilled.”
He said one recent example of stifled speech caught his attention: that of one of the witnesses, Alexander Atkins, a second-year law student at Georgetown University Law Center.
In September, Atkins faced pushback from university officials when his student group in support of Democratic presidential candidate Sen. Bernie Sanders tried to reserve a table outside Georgetown’s main cafeteria. This request was denied by the university, which cited its tax-exempt status limiting its resources for partisan political campaigns.
Georgetown’s policy regarding “political campaign activity” prohibits members of the university community, as well as student groups, from engaging in partisan political expression in any way that utilizes school resources. Georgetown interpreted the prohibition to include setting up an informational table outside of the cafeteria, as Atkins hoped to do.
After months of fighting Georgetown officials over his right to political expression, Atkins decided to contact the Foundation for Individual Rights in Education — which informed him Georgetown’s policy was far stricter than necessary. Georgetown Law Center has since agreed to change its policies.
Catherine Sevcenko, director of litigation for FIRE, said in her written testimony that although a college or university may not engage in political expression as an institution, university community members remain free to express their personal views.
“Many private colleges and universities take an overly-cautious, overly-restrictive approach to Section 501(c)(3) compliance, severely limiting or banning student partisan speech on campus,” she wrote.
She argued when universities interpret IRS restrictions too broadly, they undermine, discourage and censor campus speech.
During her testimony to the subcommittee, Sevcenko said the nonprofit has intervened with 13 schools since 2008 that claimed they could not allow political activity because it could “jeopardize their tax exempt status.”
And the number is growing, she said.
She said confusion over IRS guidelines is the likely cause of this censorship — and as long as such guidance is ambiguous, censorship will win every time.
“This subcommittee could be instrumental in solving this problem,” Sevcenko said. “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 protecting free speech on campus.”
Illinois Rep. Tom Reed, a Republican, asked Atkins if he expected the right to free expression when he decided to attend Georgetown.
Atkins said his interest in politics was a deciding factor in choosing Georgetown for law school, so he assumed his student group could openly support a candidate.
“The school makes clear in most of its promotional materials and speeches given by administrators that Georgetown’s presence in Washington, D.C., should be a draw to its students,” Atkins said.
But yet, Georgetown limits students’ political activity, he said. And Atkin said he will never get back the months he lost that he could have been campaigning for Sanders on campus.
More generally, several of the committee members questioned how suppressing free speech could affect society as a whole.
“What are the effects on society if we prevent free expression in universities?” asked Republican Rep. Tom Rice of South Carolina.
Robert George, a professor of jurisprudence at Princeton University and visiting professor of law at Harvard University, said restricting free speech will prevent the U.S. from having a well-educated society.
“The trouble with stifling speech on campuses is not only that it’s unfair and a violation of our precious First Amendment, but also that it completely undermines the mission of a university,” George said. “It makes learning impossible, it transforms education into indoctrination and then we all lose.”