Political Issues on Independent School Campuses

An election year provides rich opportunities for students to learn about the electoral process and the importance of an engaged citizenry.  As tax-exempt 501(c)(3) organizations, however, independent schools must operate solely for their exempt purpose (i.e., education) and are prohibited from participating, either directly or indirectly, in political campaign activity.  They must also act in a non-partisan manner, which means their actions cannot tend to help or harm the election chances of any particular candidate or group of candidates. 

The prohibition against supporting or opposing candidates for federal, state or local office is absolute.  However, the IRS will review a tax-exempt organization’s activities in light of all of the relevant “facts and circumstances” when determining whether there has been a violation of a school’s obligations as a tax-exempt organization. 

The guidelines below are not exhaustive, but are designed to help non-public independent schools understand actions that run afoul of the law.  Independent schools should be aware that violations of federal tax and election law could bring unfavorable media attention, trigger an audit or investigation, result in excise taxes or other penalties, or even jeopardize a school’s 501(c)(3) status.  If your independent school is considering any of the allowable activities listed below (e.g., holding a candidate forum), it should work with legal counsel to ensure that the school’s activities do not violate the Internal Revenue Code, Federal Election Campaign Act, or any other applicable state law. 

Even if your independent school is not planning to hold any such events, with the election approaching, you should consider reminding faculty and staff that certain political activities, performed on behalf of the school or using school resources, are prohibited.  

The School Cannot Engage in Partisan Political Activity

Independent schools must not support or oppose political candidates or parties.  Therefore, the school (and faculty and staff acting on the school’s behalf) should:    

• NOT comment on the policies, statements or actions of a campaign or candidate at any school-sponsored event, activity, or meeting or in any school communication or publication.

• NOT post information that favors or disfavors candidates for public office on the school’s website, blog or social media account or provide links to a candidate’s website.  
• NOT take a position on an issue and then provide information about candidate positions on the same issue.

• NOT use the school’s name, letterhead, or other identifying material in a way that provides or implies support for or opposition to a candidate.  
• NOT make any campaign contributions.  
• NOT wear political buttons or t-shirts while representing the school at any function or while working.

However, faculty and staff

• CAN engage in political activity if they do so off-campus, outside of school activities, and on their own time.  Staff should clearly indicate that the views expressed are their own and should avoid using the school’s name.  If they must use their title, staff should clearly represent that the title is being used for identification purposes only, that they are speaking only for themselves, and their statements/activities are not attributable to the school.

The School’s Resources Cannot Be Used to Support a Candidate or Party

An independent school’s resources cannot be used to support (or criticize) a candidate or distribute partisan campaign materials.  Therefore, faculty and staff should:

• NOT use school computers, copiers or printers to support or oppose a particular candidate or political party.  
• NOT use school phones, email accounts, or mailing lists to endorse or oppose any candidate or political party.  
• NOT use school email accounts to subscribe to candidate or political material.  
• NOT view candidate or political events using a school computer.  
• NOT allow election signs on school property that endorse or oppose a particular candidate.  
• NOT provide lists of names, email addresses and other identifying information about individuals (such as families, alumni, or donors) to a candidate or political party.

Candidate Forums or Debates Must Be Held in a Nonpartisan Manner

If your school hosts candidates on campus, make sure you sponsor nonpartisan forums or debates that are fair and impartial.  When hosting such events, the school should:

• INVITE all candidates to participate, either at the same event or at different events in comparable settings (with similar time and place, expected audience, and venue).  If a candidate declines to attend, the school can move forward with the event, but the school should document the invitations and refusals and maintain such documentation for its records.  
• MAKE CLEAR, at the event and in any communications leading up to the event, that the school cannot and does not support any particular candidate.  
• USE an independent nonpartisan panel to prepare and present the questions.  
• ENSURE that the topics are wide-ranging and are not presented in a way that favors one or more candidates.  
• PROVIDE each candidate an equal opportunity to present his or her views.  
• NOT show any preference for one candidate or party - either explicitly or by expressing support for one candidate’s ideas.  
• NOT ask candidates to agree or disagree with the positions, agendas, platforms, or statements of the organization.  
• NOT allow candidates to fundraise at the school or at any school-sponsored event.  
• NOT allow trustees, faculty, or staff to fundraise for candidates at the school or at any school-sponsored event.

Educating Students About the Political Process Is Allowed

Showing students how they can be engaged citizens and effect change falls within the educational mission of the school.  In addition, students have more leeway in their political activities.  Therefore, independent schools can:

• EDUCATE students about the political process.  
• ENSURE that any materials teachers create to educate students about the election process are impartial and that all candidates are fairly and equitably represented.  
• ALLOW students to voice their opinions on candidates, policy, and the electoral process.

Ultimately, an independent school must ensure that any permitted student activity is consistent with the school’s mission and other school rules, particularly those that govern student advocacy and expressions of speech on campus.  Independent schools have broad authority to regulate how, when and where students give voice to opinion.  Schools may also regulate any activities that violate other school policies, such as those on bullying or harassment, or activities that are (or are likely to be) disruptive to the school community.

Please continue to monitor ctschoollaw.com for updates.  If you have specific questions about political issues on independent school campuses, please contact Julie C. Fay at jfay@goodwin.com or Dori Pagé Antonetti at dantonetti@goodwin.com.