Two Groups Demand IRS Revoke CUNY’s Non-Existent 501(c)(3) Status
I once worked for a fella. Bert Gall was his name. As a student and undergraduate commencement speaker around 1970 or ’71, Bert wrapped himself in a North Vietnamese flag and sang Ho Chi Minh’s praises. Right there in front of all those blue collar Chicago parents. Years later, Bert was Provost at that very same Columbia College Chicago and I was General Counsel. He was serious and erudite like most provosts, the only hint of his radical history was that he chained smoked.
By now, you might have heard about the controversy regarding a commencement address given by Fatima Mousa Mohammed, one of two CUNY Law 2023 graduates elected to speak at CUNY’s 2023 commencement ceremony. I tried to embed the YouTube recording of the speech, but apparently the speech has garnered so much attention that CUNY has disabled that convenience. You can only watch it on YouTube. So click on the the link above to hear the whole speech. Trust me, its pretty much as yawn inducing as any other commencement address. It starts at one hour sixteen minutes and 30 seconds (1:16:30) give or take. My undergrad commencement speaker by the way, was Buddy Epsen, famously remembered as the loveable Jed Clampett and later the detective, Barnaby Jones. That’s how old I am and trust me he said nothing, at least not that I can remember.
So anyway, in her roughly ten minutes, Fatima condemned Israel in terms that made it pretty clear how she felt about “the troubles” in the middle east and who is to blame. She hardly spent much time on Israel, though. She saved time to condemn the fascists over at NYPD, the Big Apple’s African American Mayor, Eric Adams, Immigration and Customs Enforcement, and Lexis-Nexis for being an ICE contractor; she condemned a former Marine who killed a black man on the subway for no good reason and a bunch of other people for a buncha other sins, including sins of unamed donors who helped pay her tuition no doubt, and the ass kissers at university central administration who do the donors’ bidding but nothing for truth or justice. I think had she left Israel out of her list of wrongdoers, that might have really been anti-Semitic. I’m not ridiculing her though. I only wish I was young again and could shake my fist in certain and superior condemnation of it all. The moral clarity of youth.
I wasn’t even gonna blog about it. Until I read that a couple of groups have written to IRS Commissioner Danny Werfel demanding that CUNY’s tax exemption be yanked because of [variously, depending on the source] political intervention, lobbying, and engaging in hate speech, all as proven by Fatima’s speech. It was the assertion that CUNY’s exemption should be revoked for hate speech (including signing on to the BDS Boycott by both faculty and students) that caught my attention. Curiously, I cannot find the letter anywhere on line, though there are plenty of quotes in the media. Like this one:
Two Jewish advocacy groups have asked the IRS to probe whether CUNY Law School violated its tax-exempt status after one of its graduates delivered a widely condemned “hate speech” at commencement.
The federal tax agency should review whether the school is engaging in political or lobbying activities that would violate the non-profit status currently held by the City University of New York, wrote the National Jewish Advocacy Center and International Legal Forum to IRS Commissioner Daniel Werfel on June 2. The city law school has faced sharp backlash after 2023 law graduate Fatima Mousa Mohammed accused Israel of indiscriminately murdering Palestinians during her May 12 speech. She also ripped the NYPD as “fascist” while calling for a “revolution” to take on the legal system’s “white supremacy.” National Jewish Advocacy Center director Mark Goldfeder and International Legal Forum CEO and lawyer Arsen Ostrovsky wrote in their letter to Werfel that the speech has been denounced by numerous elected and civic leaders because of its “extremist rhetoric, divisive nature and explicit display of anti-Semitism.” The pair also alleged that when the CUNY law faculty unanimously passed a resolution to pass the “discriminatory” boycott, divestment and sanctions (BDS) campaign against Israel on May 12, 2022, it directly violated the public school’s non-profit status that “prohibits engaging in substantial political or lobbying activities.
The problem? Well . . . CUNY is not a 501(c)(3) entity. Its a government agency, and I doubt very many people at CUNY know why it pays no taxes and never will. Its tax exempt status is not exactly granted by statute. Rather, IRC 115 confirms that the intergovernmental tax immunity doctrine prevents states and cities from taxing the federal government and vice versa. CUNY is just like any state university system, not to be taxed even if it never applies for or claims 501(c)(3) status. A quick search of Guidestar might have tipped everybody off that CUNY doesn’t have 501(c)(3) status. Meanwhile, CUNY has shrewdly remained quiet about the fact it doesn’t need no stinking determination letter. Second, nothing the young revolutionary said amounts to prohibited campaign intervention or lobbying. Listen for yourself. And third, students are not agents of a university so even if her speech was that, it was not CUNY’s speech any more than College Democrats or Republicans hosting their savior candidate of the month on campus is the University’s political intervention. Trust me, my practice consisted of fun times at Ft. Campbell, followed by eight years as university counsel. So if there ever was an actual letter to Werfel, he probably threw it away after being told that CUNY is not in Publication 78.
Besides, even if Fatima’s speech was hate speech — demonizing and dehumanizing a whole group for the purpose of denying their civil or human rights, let’s just say — an organization would not lose tax exemption as an educational organization based on one lecture. The organization’s whole curriculum must be fairly described as “indoctrination,” rather than education. Its all right here on pages 25 through 46 of this soon to be noble prize winning article. One speech, lecture, book, or article does not a hate group prove. I imagine the university, in classrooms, dorms, gyms, and laboratories far from the law school, engages in enough real education that Fatima’s speech could hardly constitute a substantial part of CUNY’s exempt mission.
We can’t — and I don’t propose — to deny tax exemption even if some parts of the curriculum constitute hate indoctrination (not that it was present in Fatima’s speech). I only insist that to be educational, even a group with a philosophical bias or prejudice one way or the other, employ recognized epistemological methods. Virulent hate groups don’t do that and should not be tax exempt. CUNY is not that.
darryll jones