University cracks down on student organizations to protect nonprofit status

General Counsel reminds student of political activity policies as election season nears


Hannah Denham

When a bus distributing ice cream and informational pamphlets about the Equal Rights Amendment drove through Lexington on Monday, Oct. 28, it parked for a few hours in front of Grace Episcopal Church.

A few feet more, and it would’ve been parked on Washington and Lee University’s campus — something that university general counsel said couldn’t happen without threatening the university’s 501(c)(3) status as a nonprofit.

Washington and Lee student organization Gender Action Group (GAG) organized the event to educate Washington and Lee and Virginia Military Institute students, faculty, staff and local community members about the proposed constitutional amendment that would outlaw discrimination on the basis of gender.

Jane Matern, who is one of the three bus drivers for the VAratifyERA’s #iScream4Equality tour, emphasized that the education campaign was not about any specific candidates or party. She did encourage those who stood in line for ice cream to research their representatives and vote for any candidates, regardless of party, who supported the amendment.

The #iScream4Equality bus visited the following campuses, which all have nonprofit status, earlier this month on its Virginia college tour: Longwood University, James Madison University, Mary Baldwin University, Hollins University, Virginia Commonwealth University and Randolph Macon College.

Its website includes the following statement: “VAratifyERA is a nonpartisan campaign and the #iScream4Equality tour is an education / outreach effort. If you are involved in a nonpartisan organization, please be assured all literature and talking points will meet 501(c)(3) requirements for education and nonpartisanship. VAratifyERA does not / cannot coordinate with candidates and all literature stating a candidate’s position on ERA must be confirmable by publicly available information. If a volunteer desires to be partisan in voter education / outreach, we encourage you to engage directly with an equality candidate’s campaign.”

Nearly 80 people stopped by the VARatifyERA bus for ice cream and information on the Equal Rights Amendment. Photo by Hannah Denham, ’20.

But Washington and Lee University has its own policy in addition to the IRS regarding political activity and its general counsel said this event would violate it.

In an email chain from Wednesday, Oct. 16, Director of Student Activities Kelsey Goodwin forwarded Associate General Counsel Jana Shearer’s feedback on the proposed event to GAG faculty advisor Melina Bell and student leaders Danika Brockman, ‘21, and Beverley Xia, ‘22.

“While not as direct as some of the other requests relating to political activity, this type of event could be perceived as support for/opposition to particular candidates based on their positions on this issue,” Shearer said in the email. “While we, as a 501(c)(3) organization, are allowed to take positions on public policy issues, the IRS guidance states that we have to avoid any issue advocacy that functions as campaign intervention.”

Shearer said at the time that the university “could be wading into murky waters with the IRS” if they had allowed the bus to park on campus because the VAratifyERA campaign advocates for citizens to vote for candidates who will vote to ratify the amendment.

“This organization is supporting a specific constitutional/legislative agenda and other student organizations or individuals may want to bring a similar opportunity to campus, some of which may be controversial (e.g., NRA),” she said in the email. “If we start down this route and allow this … it may be difficult to prohibit other similar events.”

In the email chain, Bell responded that the event counts as issue advocacy and disagreed that it would violate the IRS and university policy regarding political activity.

“Primarily I care about supporting my students and their education, but I also am concerned about the message that is sent when the ERA van is doing a tour of Virginia and is welcomed at other campuses, but not welcome at W&L,” she said in the email. “[W]e could speculate about how this event ‘could be perceived’ by the IRS, but I think of how it will be perceived by the students who have been excited about this event.”

On Tuesday, Oct. 29, Goodwin sent an email to Seren McClain, ‘22, who is founder of the Pink Elephants, a new conservative feminist student organization.

In the email, she addressed both the email advertising for the #iScream4Equality bus that had visited Lexington the day before, as well as an email inviting students to a campaign event for Republican House of Delegates candidate Ronnie Campbell.

“So the University’s electioneering guidelines as set forth by General Counsel’s office are fairly strict when it comes to using campus resources (including email) to promote, directly or indirectly, a candidate currently running for office,” Goodwin said in the email. “Their office has asked me to help get the word out about these issues throughout election season and in advance of the upcoming presidential election, so I am just covering bases and letting you guys know.”

In response, Bell said she didn’t know that advertising via email for certain events was prohibited between student groups.

“It was my understanding that student groups are permitted to advertise their events to other student groups and the W&L community,” Bell said. “I thought that General Counsel objected to the truck being parked on W&L’s campus. I did not understand them to be prohibiting advertising communications between student groups.”

Goodwin did not respond to a request for comment. Shearer directed a request for comment to Drewry Sackett, the university’s associate director of communications and public affairs.

Brockman said she wished the university’s general counsel would have negotiated with GAG to figure out how to make the event work within the IRS guidelines.

“I was just really frustrated and my initial thought was, ‘Are equal rights political?’” Brockman said. “The fact that they brought up sort of the NRA as a somehow equal counterpart to the Equal Rights Amendment seemed really trivializing gender discrimination and making it sort of partisan rather than an issue of equality and humanity.”

About the Equal Rights Amendment

The #iScream4Equality bus tours around campuses in Virginia to educate voters on the Equal Rights Amendment. Photo by Hannah Denham, ’20.

The U.S. Constitution’s requires a threshold of 38 states to ratify an amendment, and after Congress passed it in 1972, the amendment is waiting on one more state to be ratified.

“I think a lot of people think [the Equal Rights Amendment] has already been ratified,” Matern said. “Virginia could make history. It’s an exciting opportunity.”

Bell, who is a law, philosophy and women, gender and sexuality studies professor, helped organize the event to bring the #iScream4Equality bus to Lexington.

The most recent vote in Virginia to ratify the amendment failed in February in the Republican-controlled House of Delegates by one vote, the Washington Post reported. It was sponsored by more than half of the House of Delegates, including several Republicans.

“I think its sort of a no-brainer to have a ban on the discrimination on the basis of sex in the Constitution,” Brockman said. “The first step toward changing our society is making it a fundamental part of our code that governs us in what is right and wrong.”

Opponents to the Equal Rights Amendment argue the provision is unnecessary or could make abortion access easier or state contracts for women-owned businesses more difficult to obtain.

But the bill has garnered support from both sides of the aisle in the past, and the November 5 election could determine a new slate of lawmakers who could vote differently the next time the amendment is up to be ratified.

Gender Action Group isn’t the first on campus to advocate for legislation. In November 2016, former university president Ken Ruscio signed a national petition in support of the Deferred Action for Childhood Arrivals program. Amnesty International lobbied bipartisan members of Congress during the 2016-17 academic year in support of the Refugee Protection Act.

Sackett did not address why this differs from GAG’s support of the Equality Rights Amendment.

University policy on political activity

Washington and Lee University, like other non-profit universities and colleges, is held responsible to the Internal Revenue Service’s 501(c)(3) code to remain tax-exempt.

“Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity,” the policy reads. “Voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.”

Sackett said that students, faculty and staff all play a role in protecting the university’s nonprofit status.

“Not adhering to the guidance established by the IRS could result in the loss of W&L’s tax-exempt status,” she said in an email. “In addition, it could put the university at risk of having costly excise taxes imposed on both on the university and its responsible managers, as well as the risk of federal or state government lawsuits, audits, and investigations.”

According to the policy, university resources, such as email, messenger, campus notices and fliers, can’t be used for campaign activity. Candidates for political office can only speak on campus if they are introduced and speak without mention of their candidacy.

Xia said that she appreciated being in the loop on the reasoning behind the university denying their request.

“It’s good to know how the school works and to know what to expect in the future so we can better prepare ourselves because our group is just focused on this issue and, if they think it’s partisan, we can probably get in trouble in the future,” she said.

The revival of GAG

Brockman said Bell and a handful of students, including herself, reactivated GAG at the end of winter term 2019 before they applied for Executive Committee funding.

“It’s still definitely in toddler stage, stumbling a little bit, not quite walking,” Brockman said. “But hopefully we’re going to get it up to a more regular sort of schedule.”

Danika Brockman, ’21, said she hopes Gender Action Group will have more successful events this year – on campus. Photo by Hannah Denham, ’20.

What’s next for GAG? Brockman says students can look out for weekly meetings to discuss gender-related issues, both domestic and global, and a partnership with Sexual Health Awareness Group and other campus organizations for Sex Week and the organizations’ annual F-Word Panel, when students, faculty and staff share what feminism means to them.

In the spirit of equality, Xia said, GAG has had parallel leadership structure instead of a hierarchy of a president, vice president and different chairs that’s typical of most student organizations. But she said they’re currently figuring out whether to assign specific roles in order to establish accountability and sustain the organization.

“The next step is just to motivate people and get people’s input on what do we want to do next because I don’t want to come up with the event by myself,” Xia said. 

Brockman said the event’s success was bittersweet.

“It was really frustrating to know that this could have been parked in the middle of Commons and could’ve gotten so much more attention about the Equal Rights Amendment,” she said. “Hopefully we get to do even more events like this — and hopefully on campus next time.”

Correction: An earlier version of this story incorrectly spelled Dr. Melina Bell’s name. The story has since been updated.