Confident Pluralism Still Matters

President Trump's threats against Harvard should remind us that facilitating pluralism means funding pluralism

Harvard University (courtesy Harvard)

The Trump administration’s assault on higher education continues apace, with a barrage of threats this week against Harvard University. It began when the administration threatened to freeze billions in federal grant dollars. Unlike Columbia University’s decision to cave several weeks ago, Harvard refused to capitulate. Now President Trump has suggested that Harvard might lose its tax-exempt status:

The federal government may eventually prevail in its efforts to cut grant funding (though it is bound by procedures it has not yet followed). But as I argued in my 2016 book, Confident Pluralism, it should not be able to call into question Harvard’s tax-exempt status or make that status contingent on “the public interest.”

I’ll unpack this claim by walking through three arguments that I made in the fourth chapter of Confident Pluralism: (1) facilitating pluralism means funding pluralism; (2) generally available funding differs from discretionary contracts and grants; and (3) the Supreme Court’s 1983 decision in Bob Jones University v. United States (which upheld the denial of tax-exempt status to a university with racially discriminatory policies) is conceptually wrong.

Funding Pluralism

Confident Pluralism contends that any society committed to facilitating pluralism must be also be committed to funding pluralism. I set up the argument with a reference to one of my favorite television shows, Parks and Recreation, noting how every few episodes, Leslie Knope and her colleagues host a gathering for Pawnee citizens to discuss and debate some issue of comic insignificance in a public forum. And these forums cost taxpayer dollars:

When the Pawnee Parks & Recreation Department hosts a public forum, Pawnee tax dollars pay for Leslie Knope and her colleagues to prepare for the forum, to arrive early to set up chairs and make sure the microphones work, and to lead the discussion during the forum. Pawnee tax dollars pay for the building, the chairs, the lighting, and the sound system. All across America, in the real Pawnees, and in cities much larger, real Leslie Knopes spend real time and real dollars to host public forums. In other words, the public forum does not appear out of nowhere, with free meeting space for the forum and free electricity to keep the lights on. Government dollars pay for the spaces, the utilities, and the employees who make public forums possible. Facilitating pluralism means funding pluralism.

No government can simply tell its citizens to “do pluralism.” It has to work to facilitate pluralism, and that means paying for public forums and other places where diverse perspectives can manifest and engage with one another.

We should be wary of government restricting these forums on the basis of viewpoint or ideology. While not every government funding decision is constitutionally problematic, we should be especially concerned when government constrains generally available funding in settings that welcome and encourage a diversity of viewpoints and ideas.

Generally Available Funding

The tax-exempt status available to charitable, educational, and religious organizations under the Internal Revenue Code is perhaps the paradigmatic example of pluralism supported by generally available funding.* As I noted in Confident Pluralism:

Within the vast domain of groups that qualify as tax exempt, every one of us could find not only groups that we think belong, but also groups that we find harmful to society. And, of course, our lists of reprehensible groups would differ. The pro-choice group and the pro-life group, religious groups of all stripes (or no stripe), hunting organizations and animal rights groups—the tax deductions benefit them all. The resulting mosaic is neither thematic nor tidy, but it is in at least one sense beautiful: it enacts the aspirations of confident pluralism. And it does so with government dollars.

Unlike discretionary funding like contracts or grants that sometimes reflect government priorities or norms, generally available funding extends to a broad range of beneficiaries. It operates akin to a public forum that cannot exclude unpopular or politically disfavored viewpoints.

The Bob Jones Decision is (Still) Conceptually Wrong

Toward the end of my chapter on government funding in Confident Pluralism, I took up the 1983 decision, Bob Jones University v. United States, which upheld the denial of tax-exempt status to schools that believed interracial relationships were contrary to the Bible and prohibited interracial dating. Chief Justice Warren Burger’s opinion for the majority pronounced that an “institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.” Burger concluded that “racial discrimination in education is contrary to public policy.”

Bob Jones is a hard case with obvious moral dimensions. It came within a generation of Brown v. Board of Education and targeted segregationist academies that resisted integration efforts. Nevertheless, I argued that the decision, while normatively attractive to almost everyone, is conceptually wrong:

I realize, of course, that the Bob Jones decision is in some circles akin to a sacred text, and that one is not supposed to question even the reasoning of certain canonical decisions. But the logic of Bob Jones is inconsistent with the public forum framing of the federal tax exemption. We cannot begin with the premise that the public forum is open to all groups and then start excluding those groups we don’t like.

No court has expanded Bob Jones to revoke tax-exemption on grounds other than racial discrimination against African Americans in education, and the scholarly consensus likewise limits the decision. Even so, the logic of Bob Jones opens the door to government abusing its funding power to attack and cripple institutions it doesn’t like. While Harvard might be able to mitigate the effects of the loss of tax-exempt status, not every college and university that will be targeted by the administration will be able to do so.

In Confident Pluralism, I concluded my discussion of Bob Jones by advocating for what I called the public funding requirement: “When the government offers generally available resources (financial and otherwise) to facilitate a diversity of viewpoints and ideas, it should not limit those resources based on its own orthodoxy.”

Current Applications

The Trump administration’s saber rattling against Harvard’s tax-exempt status is likely only the beginning, and other schools will soon be in the administration’s crosshairs. For those committed to the project of pluralism (the contours of which I sketched in a recent lecture at Duke University), the proper response to these threats is to invoke core First Amendment principles and doctrine surrounding the public forum and the public funding necessary to support pluralism in a diverse democracy. Doing so might also mean taking a harder look at the logic underpinning Bob Jones, recognizing that generally available funding programs are part of the basic structure necessary to facilitate confident pluralism, and committing to honoring and protecting that structure even when it benefits organizations we don’t like.

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* Given the brevity of this post, I will assume without arguing that the benefits that follow from tax-exempt status are akin to a subsidy. Readers skeptical of that premise should consult my discussion in Confident Pluralism and the sources cited therein.