Posted by Sasha Volokh:
Bob Jones, the Solomon Amendment, and the public policy doctrine:
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232660573
My colleague Johnny Rex Buckles has just posted the following paper on
SSRN: [1]Do Law Schools Forfeit Federal Income Tax Exemption When They
Deny Military Recruiters Full Access to Career Services Programs? The
Hypothetical Case of Yale University v. Commissioner. Here's the
abstract:
Most United States law schools prohibit prospective employers who
discriminate against students on any of several grounds, including
sexual orientation, from utilizing the schools' student recruitment
programs conducted by their career services offices. Because
homosexuals who disclose their sexual orientation may not serve in
the United States armed forces, some law schools at times have
limited the channels through which military recruiters may
interview students.
In response to the application of these anti-discrimination
policies to military recruiters, Congress enacted the Solomon
Amendment. The Solomon Amendment eliminates certain federal funding
otherwise available to an institution of higher education if it
denies military recruiters the same access to its students and
campus that other recruiting employers receive.
Although the United States Supreme Court has recently upheld the
constitutionality of the Solomon Amendment, another legal issue -
one that existing legal scholarship has never considered - remains
outstanding. The issue is whether private law schools that have
denied military recruiters full access to student recruitment
programs have forfeited their federal income tax exemption under
section 501(c)(3) of the Internal Revenue Code under the public
policy doctrine announced in [2]Bob Jones University v. United
States.
This article rigorously analyzes this provocative issue by positing
a hypothetical Supreme Court case, Yale University v. Commissioner,
in which four opinions written by fictional Supreme Court Justices
determine the tax-exempt status of several private, free-standing
law schools or their affiliated universities. This format not only
facilitates an analysis of the nuances of the public policy
doctrine, but also exposes and illustrates the vagaries of the
doctrine.
Building on [3]Reforming the Public Policy Doctrine, 53 U. Kan. L.
Rev. 397 (2005), this article concludes that the hypothetical case
of Yale University v. Commissioner demonstrates that the public
policy doctrine should be reformed.
Johnny is more positive about the prospects for salvaging the Bob
Jones doctrine than I am, but this is nonetheless a fun and intriguing
read.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1328028
2. http://en.wikipedia.org/wiki/Bob_Jones_University_v._United_States
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=846825
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