University Blocks a Student Club's Political Expression – Which Club? The College Republicans

By 

Marshall Goldman

|

November 29, 2021

3 min read

Free Speech

The ACLJ was recently contacted by a concerned relative of a Washington and Lee University (“W&L”) student regarding an incident on the W&L campus in which the school’s chapter of the College Republicans club was told that they were not permitted to openly support political candidates for office, because such support allegedly endangered the University’s 501(c)(3) status. The implication was that actions by private individuals (to wit, W&L students) could endanger W&L’s status with the IRS.

When we heard about this, we knew we needed to act, and act we did!

Of course Republican, Democrat, Green Party, Libertarian, and all sorts of other political clubs are a mainstay on university campuses nationwide. The idea that somehow these clubs could exist in theory but could not further their mission in any way is an anathema to the law. For all its ills, even the IRS has not restricted students’ political expression on campus.

We recently sent a legal letter to Ms. Maria Feeley, W&L Chief Legal Officer & General Counsel (and to W&L’s President), explaining why W&L’s actions were completely unfounded.

As we acknowledge in our letter, since W&L is a 501(c)(3), it is prohibited from engaging in certain political activities. However, we also explain that there is a clear difference between the university as an institution and a student organization that speaks only for itself and its members. In that sense, it is no different than a student expressing his or her political views, which is a classically protected free speech activity.

Nevertheless, as we suggest in our letter, as an added (though unnecessary) safeguard to W&L’s 501(c)(3) status, W&L could require visible statements by student clubs disclaiming the university’s agreement with, or support of, their actions/advocacy.

Our letter also focuses on current case law and IRS materials, which all strengthen the student club’s position in this matter.

For example, in Widmar v. Vincent, a Supreme Court of the United States case, Justice Powell wrote that:

An open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. . . . [S]uch a policy would no more commit the University . . . to religious goals than it is now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance, or any other group eligible to use its facilities.

And in Board of Education v. Mergens, Justice O’Connor explained: “To the extent a school makes clear that its recognition of respondents’ proposed club is not an endorsement of the views of the club’s participants . . . students will reasonably understand that the school’s official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech.”

Even though W&L is a private university, the above cases highlight the fact that it seems quite reasonable to assume that W&L is not automatically and/or inevitably committed to every goal of a W&L student organization merely because the student organization is a recognized club and conducts its activities on university grounds.

Our letter also includes the following IRS example to further illustrates this:

The provision of facilities and faculty advisors for a campus newspaper that publishes the students’ editorial opinions on political and legislative matters does not constitute an attempt by the university to influence legislation or participate in political campaigns. . . .

[T]he fact that the university furnishes physical facilities and faculty advisors in connection with the operation of the student newspaper does not make the expression of political views by the students in the publishing of the newspaper the acts of the university within the intendment of section 501(c)(3) of the Code.

Contrary to W&L’s Mission Statement and Diversity Statement, W&L has, unfortunately, adopted a policy against student advocacy for political candidates based on an incorrect understanding of the law.

As the ACLJ continues to fight for students’ free speech activities across the country, we’re hopeful that W&L will correct its ways and no longer hinder its student clubs from engaging in the types of activities that will in no way jeopardize W&L’s 501(c)(3) status.

We will note that there is a College Democrats club at the university; and if the university were to, in fact, treat the Republican club differently than the Democrat club, then the university may invite upon itself the very problem it supposedly was trying to avoid. We will continue to follow this situation should further efforts need to be taken.

Support the work of the ACLJ as we continue to battle to defend students’ free speech on campus.