Thumb on scale? University bars display for Youngkin, but churches run ad for McAuliffe

Washington and Lee University misapplied IRS rules to prohibit College Republicans from promoting Virginia GOP gubernatorial candidate, charges campus free-speech watchdog FIRE.

Updated: October 21, 2021 - 11:26pm

A top-ranked private university in Virginia ordered its College Republicans (CR) chapter to stop promoting Republican candidate Glenn Youngkin in the neck-and-neck gubernatorial contest with Democrat and former governor Terry McAuliffe, according to the student group.

While Washington and Lee University (WLU) has not publicly confirmed it believes that its tax-exempt status prevents student political groups from endorsing candidates, the Foundation for Individual Rights in Education (FIRE) posted email correspondence that suggests it had enforced this view.

An IRS guidance document from 2002 says the "actions of students generally are not attributed to an educational institution unless they are undertaken at the direction of and with authorization from a school official."

After FIRE warned the university it was violating its own promises to students and misapplying IRS guidance, administrators "doubled down" in two subsequent meetings with CR President Lillian Gillespie, claiming WLU has never let student organizations promote political candidates, FIRE said Tuesday.

Gillespie told Just the News the issue didn't come up in last year's political campaigns because "we didn't really gather in meaningful ways" owing to COVID-19 rules on campus. The student activities fair where the CR got in trouble last month was virtual last year. 

While the CR in her time had previously only discussed "local Republican chapter events" at their own meetings, "I have heard from alums spanning 2005-2012 that there was campaigning on campus by both College Democrats and College Republicans," she wrote in an email. 

"If they are correct, then the [university's] assertion that it has 'always' been the policy to  prohibit campaigning would be false," Gillespie said.

By contrast, hundreds of churches in Virginia appear to be violating the 1954 federal law that WLU claims to be following.

They are airing a political ad by Vice President Kamala Harris through election day that urges churchgoers to vote for McAuliffe, even though the so-called Johnson Amendment bans 501(c)(3) organizations from endorsing or opposing political candidates. 

Americans United for Separation of Church and State urged Virginia churches to "keep that video at arm's length, lest they violate" the law.

It's not clear whether WLU's tax-exempt peers are enforcing the same view on their student political groups. WLU is the top private university in Virginia on ranking service Niche. Among the next five on the list, only Liberty University responded to a query from Just the News.

Spokesperson Ryan Helfenbein didn't answer whether Liberty has enforced the same view on its student groups, but did note the hundreds of churches airing the Harris ad for McAuliffe.

FIRE program analyst Sabrina Conza told Just the News this was the first time it knew of WLU invoking its IRS status to shut down student speech, "but the first time is never the last." Neither WLU nor Youngkin's campaign responded to queries.

The civil liberties group has called out several private universities in recent years for applying the same interpretations as WLU, including Georgetown Law in the 2016 presidential campaign and Susquehanna University in last year's campaign. 

DePaul University cited its tax exemption in banning its CR chapter from chalking pro-Donald Trump messages in 2016 as well.

'Preposterous' interpretation

In an "election campaign season" statement to the WLU community, apparently first sent in summer 2020, General Counsel Marie Feeley laid out several rules for student political activity she said were required by the IRS. 

They are banned from using WLU email and other "support services" in connection with campaign activities, or even listing preferred candidates on their university-hosted student group web pages unless all candidates are listed.

However, Republican and Democratic student organizations are explicitly allowed to pursue "their normal activities consistent with the academic nature of their endeavors," as long as they specify at events that the university is neither endorsing nor opposing a candidate.

Director of Student Activities Kelsey Goodwin told the CR at last month's activities fair that their display for Virginia Republican candidates, including a Youngkin sign and campaign materials, must be removed because of IRS rules, according to FIRE's Sept. 23 letter to Feeley.

Goodwin's email to Gillespie and her College Democrats counterpart the day after the fair simply links to Feeley's statement on political activities, but it says the general counsel's office would be "happy to meet" with them "if you have any questions or need clarification."

FIRE's Conza told Just the News that Goodwin later backtracked on a meeting with Feeley's office and that Gillespie has tried unsuccessfully to get that meeting.

Gillespie's response to Goodwin says WLU's expansive view of restrictions on students' political activities contradicts its promises, and limits students' opportunities to "learn about hands-on civic engagement opportunities." 

The university's interpretation is "either mistakenly overbroad or an intentional attempt to limit students' freedom of expression," Gillespie wrote: "It is preposterous that the actions and opinions of a small minority of students dedicated to politics and political activity could be construed to represent the beliefs of the University as a whole." 

She asked Goodwin whether WLU's expansive statement banned students from parking on campus if their cars have stickers promoting Joe Biden or Donald Trump, putting up such posters in their dorms, or receiving campaign email at their university email addresses.

Gillespie's letter also discloses that the College Democrats told the CR they couldn't promote Youngkin at the activities fair. Gillespie emphasized to Just the News that the group didn't rat them out to administrators and didn't promote McAuliffe at the fair.

According to FIRE, WLU never responded to its letter to Feeley, but Goodwin told Gillespie she was "shocked" that FIRE intervened. The university allegedly confirmed to the student Monday that the CR were still not allowed to advocate for Youngkin.

"[N]o reasonable person could be misled into believing that W&L has chosen to endorse a candidate in a state or national election through a student organization's inclusion of campaign materials in its exhibit at a student activities fair" where both political parties were represented, FIRE's Sept. 23 letter said.