Curious high school seniors stumbling upon the University’s homepage are immediately greeted by headlines linking to stories about alumni achievements in Hollywood, or professors commenting on some issue of public policy to National Public Radio.
At times, however, the criteria for which media links are posted and which are not is influenced by a concern for potential legal consequences—especially during an election year.
“Trouble can arise if the University appears to endorse or support a candidate, directly or indirectly,” explained lawyer Dave Winakor, who serves as the University’s general counsel.
The University’s not-for-profit status means that, technically, it is prohibited from participating in political activities, such as endorsing a presidential candidate or providing support for campaigns. So, when Assistant Professor of Government Melanye Price published the op-ed, “What Obama Means” in the March 16 issue of The Hartford Courant, endorsing Barack Obama (D-Ill.) for president, the piece was not linked on the University’s homepage because of concerns that it could be interpreted as an official endorsement of Obama’s candidacy.
“Our legal adviser thought we shouldn’t post a link,” wrote President Michael Roth in the March 25 post on his blog, Roth On Wesleyan. “But some faculty wondered if we were avoiding politics in ways that distort who we really are as an institution. We didn’t post the link on the homepage, but I am not confident that we shouldn’t have done so.”
Vice President for Public Affairs Justin Harmon and Director of Media Relations Dave Pesci both contacted Price after the decision was made to explain that, without posting links to other faculty or alumni’s discussions of candidates John McCain and Hillary Clinton, it could possibly be interpreted as the University’s endorsement of Obama.
“It’s always a tough call for something like this,” Pesci said. “But any time we believe something can threaten Wesleyan’s non-profit status, we take the side of caution.”
“Would I have liked my op-ed piece on the web?” Price wrote via e-mail. “The answer to that is ’yes.’ I see my other colleagues showcased, and I would have liked to have been as well.”
Price implied that the faculty response to her op-ed was high and that many of her colleagues argued in favor of highlighting it on the homepage.
“I was also pleased that there were so many of my colleagues from across campus who were willing to advocate for me and others who might be in a similar situation,” she said.
Price first drafted the op-ed after hearing Obama speak in front of a crowd of 17,000 at Hartford’s XL arena, the evening before the Feb. 5 Super Tuesday primaries.
“I knew when I entered that arena that I would be voting for Obama, but when I left I knew with greater clarity why,” she wrote in the conclusion to the op-ed.
In light of the debate over Price’s piece, Roth said, he asked Media Relations for recent examples in which the IRS penalized a university for violating its non-profit status. Pesci referred him to the case of The United Church of Christ in Hartford, currently under investigation after Obama gave a speech there last June. The investigation was initiated even though the speech was not officially a campaign event, addressing the senator’s personal spiritual journey rather than campaign politics.
“The way the story is being reported, it sounds as if the act of him giving a speech in that church alone equated to a tacit endorsement of Mr. Obama’s candidacy and thus violated the terms of its nonprofit status,” Pesci said.
According to an IRS report on the 2004 election cycle (available at irs.gov), most non-profit organizations that came under scrutiny that year were churches and charities, not universities. Of a total 82 reviews, 15 charities were examined for implicitly endorsing or opposing a candidate by linking to another website.
However, the IRS Revenue Ruling 2007-41, which provides non-profits with guidelines for what kind of political activity is acceptable under the law, states that linking to media that discusses the presidential candidates is not automatically a violation.
“Links to candidate-related material, by themselves, do not necessarily constitute political campaign intervention,” the ruling reads.
In the end, the case may depend on the “directness of the links between the organization’s web site and the web page that contains material favoring or opposing a candidate for public office.”
“If an organization posts something on its web site that favors or opposes a candidate for public office, the organization will be treated the same as if it distributed printed material, oral statements or broadcasts that favored or opposed a candidate,” the ruling states.
If the University ever were to come under investigation for violating its status as a 501(c)(3) organization, penalties could range from a financial fee to revoking its non-profit status.
“Non-profits are regularly audited and suffer unfortunate results,” Pesci said. “How likely is it? We have been informed that the IRS has become much more vigilant in this area lately.”
While there have been no recent cases in which liberal arts colleges have come under scrutiny, in 1983, Bob Jones University, a Christian college in Greenville, S.C., had its non-profit status revoked by the IRS for denying admissions to students who were known to support or engage in interracial dating or marriage. However, Pesci and Winakor said, a lack of information made it difficult to know exactly how many universities have been investigated by the IRS because of implicit candidate endorsements.
“Unfortunately, non-profits which get audited or fined by the IRS or which lose their non-profit status don’t make their troubles well-known,” Winakor said.
The IRS Revenue Ruling 2007-41 also states that non-profit organizations “may take positions on public policy issues, including issues that divide candidates in an election for public office.”
This means that the University may still link to stories in which students, alumni or faculty express opinions about public policy issues, including those which may come up during an election year, so long as no implicit endorsement is made.
Pesci cited a few examples in which the homepage linked to stories in which either students, faculty or alumni take a clear political stance on controversial issues such as the War in Iraq.
“During the summer, I posted several of the stories detailing Ashley Casale’s [’10] ’walking protest’ [against the war],” Pesci said. “We also contacted media outlets alerting them this was occurring. In 2006 we helped place a piece in The Courant about SEWI [Students for Ending the War in Iraq] organizing a protest in Middletown, and posted that piece on the homepage. It’s not about issue advocacy. It’s about candidates and political campaigns.”
SEWI member Erik Rosenberg ’08, however, cited an incident in November 2006 in which Media Relations chose not to link to an article that appeared in The New Haven Register, covering a student anti-war protest. Rosenberg said that he was told by Pesci that the University did not openly take on any political stance or promote any political agenda, including through media links on the homepage.
“If a university posts a link to an article about a demonstration, that does not mean the institution supports the action,” Rosenberg wrote in an e-mail addressed to several class deans in November 2006, which he made available to The Argus. “…Posting the article would not constitute a political statement by the University—it would only show that a Wesleyan student group had successfully organized a newsworthy activity.”
Rosenberg said that this was an instance in which, although posting such a link on the homepage would by no means threaten the University’s non-profit status, because it did not involve endorsing a candidate running for office, he was told that the homepage only linked to media items that promoted academic or institutional achievement.
“If Wesleyan students are engaged in political action, that does mean the University is making a political statement that could threaten it’s non profit status,” he said. “It just means that the school has successfully taught its students the value of effective citizenship, which is one of the ’Ten Essential Capabilities’ a Wesleyan education is supposed to provide,” he said.
Whatever constitutes a newsworthy headline—or a candidate endorsement, for that matter—is an issue up to constant interpretation by the University’s Media Relations, legal counsel and president. Roth maintained that while the University’s homepage is a place for highlighting faculty and student achievements in scholarly and political worlds, it is vital to always stay on top of the legal risks.
“We would rather not go to court,” he said.
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