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Legal Watch: Political Activity on Campus

 

 

By Ada Meloy
 
Most1 American colleges and universities and their foundations are tax-exempt, or not-for-profit, entities. These institutions enjoy many clear benefits as a result of this status, but must follow a raft of special rules and regulations. In this election year, rules governing political activity on campus should be top of mind.
 
This article will focus on federal law that applies to 501(c)(3) entities. The principles found in these rules are likely echoed in your state’s regulations, and as such can be useful to tax-exempt institutions of all stripes and regions.
The Internal Revenue Service (IRS) guidance2 on political activity at 501(c)(3) entities states that these institutions “may not participate in, or intervene in…any political campaign on behalf of (or in opposition to) any candidate for public office.” During the election season, it is especially important to be mindful of this restriction.

The IRS language is broad enough to cover an array of circumstances. And because there are no bright dividing lines in the rule, potential violations are evaluated on a case-by-case basis. Past IRS rulings and guidance offer a few common themes.
 
First, the Good News…
Not all political activity is disallowed.3 After all, civic engagement is an important part of college life, and First Amendment protections come into play. Each of the following activities is allowable under certain circumstances:
  • Candidate appearances
  • Issue advocacy"
  • Arm’s-length” business with a candidate
  • Use of institutional resources, from curriculum to hyperlinks
  • Participation in the election process by employees of the institution
  • Voter education, voter registration, and get-outthe- vote campaigns
 
But It’s Complicated…
Candidate appearances:
The Republican presidential debates offer examples of how a candidate’s presence on campus must be carefully handled. Several debates this election cycle have been held on college campuses, from Iowa State to Dartmouth. For candidate appearances to pass IRS muster, the institution’s neutrality must be maintained; in the case of a debate or similar event, all qualified candidates must have an equal opportunity to appear. If a college invites a candidate to speak in his capacity as a candidate, all legally qualified candidates must also be invited, and if they speak at separate events, favoritism in the quality of those events should be avoided. The host school also has to explicitly state in the candidate’s introduction that the institution doesn’t support or oppose him or her.

However, the world of higher education touches the world of politics in both obvious and more nuanced ways. As an example, President Barack Obama delivered the commencement address at Barnard College. It was, of course, a special honor for Barnard and its graduates, but it is important to note in this context that he did not appear as a candidate for office, but rather as a sitting public official.
Issue advocacy:
An institution is free to take a policy position, but should avoid tying that policy issue to particular candidates. Even timing an otherwise candidateneutral policy statement too close to an election can be problematic.
 
Arm’s-length business with a candidate:
Business with a candidate, as a rule, must truly happen at a distance. The goods or services sold to one candidate must be available to all candidates and the general public at the same usual fees. It should also be something that’s normally offered by the institution, not a special item made available specifically for candidates.

Use of institutional resources:
This category of activity is wide-ranging and demands careful attention. It’s acceptable for a school to offer a political science class that gives students time to work on a political campaign—as long as the school makes no attempt to influence student campaign choice. Likewise, even openly partisan student groups may use an institution’s facilities without violating any rules, and student newspapers can publish editorial opinions without putting the institution’s tax-exempt status at risk. These examples further the goal of fostering students’ civic engagement while avoiding the perception of institutional bias.

Like other published statements by a college or university, online content is generally acceptable as long as it is unbiased. Even linked content on a university website should be unbiased. Thus, a link to a newspaper editorial endorsing a candidate would be unacceptable. If one candidate’s official website is linked, all the other candidates’ websites should be linked in a similar manner. Content of message boards and forums hosted on a university’s website are problematic if the statements posted there can be attributed to the institution. An explicit disclaimer can help in these instances.

There are certain uses of institutional resources that are clearly off limits. An institution simply cannot help a candidate with fundraising, cannot reimburse employees for campaign contributions, and cannot sponsor events that favor a particular candidate. Simply put, the biased use of resources is unacceptable in all cases.
 
Participation in the election process by the employees of an institution:
While nonprofit entities must avoid endorsing a candidate, the same does not hold true for its employees. Like student speech, employee speech is often protected, and faculty members may enjoy even greater protections of their speech. As long as the employee makes unequivocally clear that he does not speak on behalf of the institution, that employee may participate in campaign activities and can make public statements in support of or in opposition to candidates for office.
 
But there are some limits on this employee freedom. Namely, employees must be careful to put some space between official work and personal politics. For example, a dean should not make statements in support of a candidate if she is speaking during a regular meeting of the board of trustees, nor should she publish her personal voting preference in the university’s newsletter. These employee statements and activities must take place outside usual work hours and duties.
 
Voter education, voter registration, and get-out-the-vote campaigns:
These are areas where nonprofits, including colleges and universities, have a particular tendency to draw IRS ire. Even subtle bias is strictly forbidden. For example, it would be impermissible for voter registration and get-out-the-vote campaigns to target voters from a particular party or court supporters for a particular candidate.
 
The Devil’s in the Details
While colleges and universities aren’t excluded from the political process, the law requires institutions to toe a blurry line. Violations can have serious consequences, from lawsuits and investigations by the IRS to possible loss of tax-exempt status. And the IRS isn’t the only entity with rules about political activity on campus. State law may impose other restrictions on political activity related to state or local campaigns. It’s best to seek out the advice of the institution’s legal counsel before engaging in any political activity.
 
 
Ada Meloy is general counsel of ACE. She acknowledges the contributions of Tessa Somers, a law student at Washington University in St. Louis, in preparation of this article.
 
1 Proprietary school enrollment has grown over the past few years, but in 2009, the U.S. Department of Education reported proprietary schools enrolled only around 2.2 million students out of the nearly 42 million university and college students in the U.S. that year. See Knapp, L.G., J.E. Kelly-Reid, and S.A. Ginder, Enrollment in Postsecondary Institutions, Fall 2009; Graduation Rates, 2003 & 2006 Cohorts; and Financial Statistics, Fiscal Year 2009. Washington, DC: National Center for Education Statistics, 2011.
2 Revenue Ruling 2007-41, 2007-25 I.R.B. (June 18, 2007).
3 Political Campaign-Related Activities of and at Colleges and Universities, American Council on Education, (Sept. 14, 2011) (available online at www.acenet.edu).