Jonesing for Harvard

Why the Trump Administration should show no mercy to Harvard or anyone else.

As usual I woke up yesterday wondering, "What mushy slop has John Yoo served up today?" So imagine my surprise when I saw that he was up at National Review with an article concluding that the Trump Administration indeed has a strong legal case for stripping Harvard of its tax-exempt status. John and his co-author Robert Delahunty note that the controlling case on the matter is Bob Jones University v. United States, way back in 1983.

That case involved a challenge the Reagan Administration brought over the legal authority for the IRS to enforce civil rights laws. Bob Jones University prohibited interracial dating and marriage, thus violating several civil rights laws. The Supreme Court ruled against Bob Jones University, but with language quite sweeping beyond just civil rights law.

As Yoo and Delahunty explain:

But the IRS can remove 501(c)(3) designation if the organization engages in conduct that violates “established public policy.” The Supreme Court recognized this public policy doctrine in Bob Jones University v. United States (1983). Bob Jones was a private Christian university that prohibited interracial dating and marriage based on its understanding of biblical teachings. The IRS concluded that Bob Jones’s rule violated fundamental national policy. Agreeing with the IRS, the Supreme Court found that the institution’s purpose “must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.” It concluded, “it would be wholly incompatible with the concepts underlying tax exemption to grant the benefit of tax-exempt status to racially discriminatory educational entities.”

The Court also used the phrase “contrary to a fundamental public policy.”

Harvard, they point out, is well within the four corners of "contrary to a fundamental public policy" because:

the Supreme Court has already found that Harvard blatantly violated the Constitution with discriminatory policies. In 2023’s Students for Fair Admissions v. Harvard (SFFA), the Justices held that Harvard’s use of race in admissions intentionally discriminated against Asian-American and white applicants. New lawsuits claim that Harvard uses proxies to continue to engage in racial “balancing” in its student body. The Trump administration could further claim that Harvard’s failure to protect Jewish students from harassment also violates the public policy against racial discrimination.

It is just here that we should pivot to the counter argument some nervous conservatives are raising that if the Trump Administration wallops Harvard by stripping its tax-exempt status, when liberals get back in power they will use the same move to punish churches, private religious schools, and numerous other categories of center-right non-profit causes.

News flash: liberals were already threatening to do this, and would certainly be on their way to doing so even if Trump had never returned to office. Cast your mind back to Obergefell v. Hodges, the 2015 case that legalized same sex marriage. That decision— another Anthony Kennedy special (meaning it was largely unmoored from actual constitutional law)—held that same-sex marriage had to be legalized because LGBT people are entitled to "equal dignity." During oral arguments in Obergefell, Justice Samuel Alito brought up the Bob Jones case and asked whether legalizing same-sex marriage might in consequence threaten the tax-exempt status of churches and other religious organizations who resisted approving same-sex marriage. Solicitor General Donald Verrilli replied that it was "certainly going to be an issue."

In other words, the answer is Yes—we’re coming for you, eventually. And there have been calls from people on the left since Obergefell to strip all churches that won't bless same sex marriage of their tax-exempt status. Laurence Tribe, natch, is all in favor of this. The left was coming after conservative and faith-based groups before Trump interrupted them—just recall how the Obama Administration went after Little Sisters of the Poor for resisting coverage of abortion services in their health insurance plan.

The point is, there is no virtue in turning the other cheek now, in hopes the left will back off once they are in power again. Let's have it out now, and "heighten the contradictions" of our runaway civil rights regime by striking Harvard first.

For a more complete treatment, see "A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell" by Samuel Brunson and David Herzig in the Indiana Law Journal.

P.S. Here’s the podcast (and transcript) of John yesterday with Paul Gigot at the Wall Street Journal.

Meanwhile, how about some Tuesday memes: