Flunking the Methodology Test: A Flawed Tax-Exemption Standard for Educational Organizations That Advocate a Particular Position or Viewpoint


If “the power to tax involves the power to destroy,” the power to exempt involves the power to let flourish. Pursuant to the Taxing Clause, Congress may grant exemptions from federal income taxation as a matter of “legislative grace.” Congress has seen fit to bestow this favor upon a wide range of organizations, including social welfare and mutual benefit organizations, such as veterans’ associations and country clubs. Arguably Congress’ greatest solicitude has been reserved for public charities under Internal Revenue Code (“I.R.C.”) section 501(c)(3) and its implementing regulations, which extend exempt status to organizations that provide religious, educational, and other services of broad public benefit, including but not limited to “relief of the poor and distressed.”‘ Today, public charities constitute a large proportion of all exempt organizations, providing myriad public services that neither the private sector nor the government is willing or able to offer. Public charities are also a thriving and important sector of the economy, accounting for 10.6% of total employment and 6.49% of national income in 1994. Insulated to a significant degree from the demands of the profit-driven marketplace, as well as from the political process that determines the allocation of public funds, charitable organizations have the flexibility and capacity to experiment with new ideas, methods, and bases of support. Yet such organizational “independence” comes with strings attached; statutory constraints on the use of funds-such as prohibitions on lobbying, electioneering, or benefit to private individuals -narrow the range of activities to which exempt organizations may devote their resources. By relaxing or restricting the requirements of exemption, then, Congress may facilitate or inhibit certain kinds of organizational functions.  Tax-exempt status thus may be perceived as a symbol of government tolerance, if not outright approval, of activities that do not receive direct public funding. On the other hand, denial of exemption may be perceived as an indication that an organization’s activities fail to meet governmental standards or pursue government-approved policies, although they fall short of being sanctionable.

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