The IRS’s cruel new proposal weaponizes civil lights law against itself

What the IRS proposed Sept. 3 is not enforcement. It is a power grab that should alarm everyone, regardless of where you stand on affirmative action.

I spent five years as an IRS attorney enforcing the tax rules that govern private schools. These new regulations propose to strip tax exemption — and with it the charitable deduction, access to foundation grants, and in many cases state tax exemptions — from any private school operating any race-conscious program for any purpose. The agency’s estimates put the affected universe at 18,000 institutions and 750,000 students.

The deeper problem is not the impact on private schools. It is what the IRS claims the executive branch can do to any private institution the administration opposes. The IRS asserts the power to take a Supreme Court precedent, declare it reflects national policy and through the tax code impose that policy on private actors the precedent does not reach.

That is not enforcement of existing law. That is the creation of new legislative and executive power the court never granted and Congress never authorized.

Some history is needed. In 1983 the Supreme Court decided Bob Jones University v. United States , upholding the IRS’s revocation of tax exemption from a university that practiced racial segregation. That case is the legal foundation of the current regulations. But it also exposes their fatal flaw.

The Court in Bob Jones did not give the IRS open-ended power to define national policy through the tax code. It authorized the IRS in that specific case because all three branches of government had converged on the same prohibition over decades.

Congress had passed the Civil Rights Acts and the courts had decided Brown v. Board of Education . Presidents of both parties had enforced desegregation. In Bob Jones, Justice Lewis Powell wrote separately to warn that without that deep democratic agreement the IRS could become exactly what we are seeing today: a weapon aimed at ideological opponents.

Here the convergence runs the other way. Congress has never legislated against race-conscious remediation. The IRS itself explicitly protected minority-favoring scholarship and admissions programs for over the last 50 years. The administration is not implementing a democratic consensus. It is claiming the power to create one by decree.

The administration’s legal theory rests entirely on Students for Fair Admissions , the 2023 Supreme Court decision striking down race-conscious admissions at Harvard and the University of North Carolina. But that decision was decided under the 14th Amendment’s equal protection clause and Title VI of the Civil Rights Act . Both apply to government actors and recipients of federal funding. The court was not declaring a new national policy binding on every private school in America but only resolving a specific legal dispute about specific programs at specific institutions.

The IRS does not explain how a constitutional holding about university admission policies becomes a tax exemption standard for every private school in the country. It has simply asserted it.

The stakes here are not limited to the institutions currently under attack. Every tax-exempt organization in America — including universities, hospitals, foundations, advocacy organizations, churches — now operates in a legal environment where the executive branch claims the power to define fundamental public policy through the tax code based on judicial decisions it selects.

Institutions whose entire mission is remedying the effects of historical discrimination face the particular cruelty of having that mission turned against them by the very legal doctrine designed to protect it.

Whatever you think of affirmative action, ask yourself what a future administration might do with the same theory. The answer should worry everyone.

These regulations should be withdrawn. If the administration believes Students for Fair Admissions requires this result, it should go to Congress and make that argument. Congress can act. Congress can be held accountable. IRS rulemaking cannot.

This is not enforcement of existing law. It is the assertion of new power dressed as a legal obligation. The courts should reject it.

Philip Hackney is a professor of Law at the University of Pittsburgh School of Law.