Are Palestinian Rights Organizations and the Universities that Host Them Hateful Indoctrinators?

Everybody knows, by now, how I feel about revoking tax exemption for hate groups.  I have written that stochastic terrorists can be denied tax exemption without violating the First Amendment.  But my paper acknowledges the need to tread lightly and the government’s evidentiary burden, lest it deny tax exemption simply because it does not like what the group is saying.  Only when a hate group is saying something government, itself, cannot say may government deny tax exemption based solely on what the group is saying.  Government may not say “Black people are dangerous,” “Jews are greedy,” and “women should be kept barefoot and pregnant.”  Government can’t punish hate speech but it sure as hell can’t subsidize it either.  But look, it can and probably must subsidize charities that say “Black people commit a lot of crime,” “Jews control a lot of Wall Street and Hollywood” and “Women cry wolf too often.”  I don’t like or agree with any of  it, but its a free country.  Anyway, its all right there in my paper.  

Another reason a hate group can be denied tax exemption is if its pedagogy cannot reasonably be described as education.  Big Mama Rag acknowledges the distinction between education and indoctrination, even if it held that the regulations don’t sufficiently articulate the distinction to pass First Amendment muster.  My paper proposes a solution to that too.  

But nothing I say in my paper would justify revoking tax exempt status for universities that tolerate groups verbally sympathetic to Palestinian rights or the Palestinian rights groups themselves.  Those who advocate for revocation seem invariably to conflate Palestinian rights advocacy with Hamas murder and terror.  I don’t buy that yet and can’t imagine I ever will.  Groups like Students for Justice in Palestine are several shades different from . . . say, the Council of Conservative Citizens or the New Century Foundation who teach that Black people are dangerous, Jews are greedy, and both should be wiped from the face of the earth. No doubt some groups and individuals — probably some Palestinians — say those things about Jews and Israel, but universities and the Palestinian student advocacy groups they host don’t. 

So I disagree with Leslie Lenkowsky, who fairly implies in a WSJ piece that universities and the groups they host on campus are close to the revocation line.  Hardly.  I agree, however, that it would be difficult to deny tax exemption to universities that host Palestinian Rights groups, or the groups themselves:

The U.S. has traditionally given charities and their supporters great leeway in handling controversial issues. Constitutional guarantees of free speech and assembly protect their activities and require government to demonstrate a strong reason for restricting them. But Congress and the Supreme Court—as well as nearly three dozen states—have agreed that providing aid to terrorist groups like Hamas is a justifiable reason to forbid donors from supporting them.

Mr. Smith’s statement suggests the tax exemptions of organizations backing Hamas—or tolerating such activity—may be in for congressional scrutiny. Virginia’s Attorney General Jason Miyares has launched an investigation of AJP Educational Foundation, aka American Muslims for Palestine. Mr. Miyares’s office said in a press release that it is looking into whether the group “used funds raised for impermissible purposes under state law, including benefitting or providing support to terrorist organizations,” as well as whether it was properly registered to solicit contributions in the state.

A law restricting gifts to American groups that engage in advocacy on behalf of terror groups would face tougher First Amendment scrutiny. But there is a difference between exercising free speech and receiving a tax break for doing so.

Courts and legislators have long tried to distinguish between “education,” which has traditionally been considered a charitable activity, and “propaganda”—intentionally transmitting biases and misinformation on behalf of a particular position—which hasn’t. In formulating tax policies, lawmakers have sought to encourage organizations providing education (and their supporters), while avoiding tax advantages for those involved in propaganda.

This is treacherous terrain. Not long ago, the IRS used a procedure for reviewing tax-exemption applications that singled out groups with words or phrases such as “tea party” in their names. It led to a scandal, congressional hearings, and ultimately a court ruling that outlawed the practice. Now, in determining if an organization’s activities are educational, the IRS is supposed to look not at the group’s views, but at its conduct, which should involve a fair and noninflammatory presentation of facts.

If Palestinian rights groups and the universities that host them really were hateful indoctrinators, there is a constitutionally sufficient means to revoke tax exemption.  But there is insufficient predicate for that.  

darryll k. jones