November 3 is the last day to submit a comment on the proposed IRS rule changes that would strip private educational institutions of tax-exempt status if they consider race, color, ethnicity, or national origin in any way. Make a comment today.
Crimson Courage plans to speak out. On December 2, 2026, there will be a hearing at which parties can give testimony on why the changes should or should not be adopted. Below is the memo submitted by Paul Summit on behalf of Crimson Courage, requesting to speak on why this rule should not be adopted.
Memo to: Officials of the Internal Revenue Service
From: Paul E. Summit, on behalf of Crimson Courage
Date: November 2d, 2026
Re: Proposed Outline for the IRS Telephone Hearing of December 2d, 2026
I wish to speak on December 2d on behalf of Crimson Courage, an alumni organization founded in early 2025 to support and encourage Harvard University to remain independent of federal governmental interference and control over Harvard’s curriculum, hiring, admissions, and related policies. We count over 17,000 alumni from around the country as supporters. These alumni come from a huge range of academic years and from all the many Harvard degree programs.
I intend to speak for no more than 10 minutes, covering the following topics.
I am a Harvard graduate, class of 1971. In 1973, I was a junior staff member of the Senate Watergate Committee. I attended Columbia Law School, graduating as a Kent Scholar in 1977. I was an Assistant United States Attorney (a federal prosecutor) in the Southern District of New York from 1982 to 1987, serving for most of that time under Rudolph W. Giuliani as U.S. Attorney. I prosecuted a number of tax fraud cases, including a case against the only former United States Treasury Secretary ever to be convicted of tax fraud, Robert Anderson.
The proposed regulation should not be implemented. First, it gives the IRS the latitude to determine, on its own what constitutes “discrimination,” even if not illegal. Second, vague regulations are a red carpet for mischief. Third, the IRS relies on the case of Bob Jones University v. United States, 461 U.S. 574 (1983), as justification; that is woefully misguided. And fourth, implementation of the regulation could cause grievous harm to Harvard and thousands of educational institutions around the country.
The IRS should not be free to define “discrimination” however it chooses. The preamble to the regulation states explicitly that the regulations can cover any consideration of race in education “regardless of the intent behind or the legality of such discrimination….” So a university’s supposed “discrimination” can be absolutely “legal” under existing federal statutes and constitutional caselaw, yet nevertheless punished by the loss of tax-exempt status. The regulations do not even attempt to define “discrimination.” So the IRS will be judge, jury and executioner on complex issues of equality and diversity. The question of what constitutes “discrimination” — as opposed, for example, to affirmative action — has led to hundreds of federal and state court rulings around the country for decades. But the IRS will have untrammelled discretion in removing tax-exempt status from educational institutions when they find whatever they choose to call “discrimination.”
Vague regulations are a red carpet for mischief. Over the past decades, some of the most conservative Supreme Court justices have warned against vague regulations. For example, Justice Antonin Scalia: “Deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases.” This promotes “arbitrary government.” (Scalia, J., concurring, Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50, 68-69 (2011)). The proposed regulations invite the federal government to target (supposed, undefined, and one hundred percent legal) “discrimination” as a pretext for imposing a political ideology on universities around the country.
The Supreme Court’s opinion in Bob Jones University v. United States, 461 U.S. 574 (1983), is no justification for the proposed regulation. Bob Jones permitted the IRS to deny the Bob Jones University tax exemption for conduct that violated a public policy so settled and fundamental that there could be “no doubt” about it. The policy had been embraced by all branches of government for decades. Even then, Justice Powell, concurring in the outcome, warned against allowing the IRS to decide which public policies were fundamental enough to disqualify a charity. He was “troubled by the broader implications of the Court’s opinion with respect to the authority of the Internal Revenue Service….” He thought aspects of the Court’s majority opinion “ignore[d] the important role played by tax exemptions in encouraging diverse, indeed often sharply conflicting, activities and viewpoints.” And he quoted Justice Brennan’s observation that nonprofit groups receive tax exemptions because “each group contributes to the diversity of association, viewpoint and enterprise essential to a vigorous, pluralistic society.”
Implementation of the regulation against Harvard and other institutions of higher education would be a tremendous injury to the public good. In its most recent fiscal year, ending June 30, 2026, Harvard received more than $1.5 billion in gifts from alumni and others. These were tax deductible: a major incentive for potential donors. What did Harvard do with these gifts during the past year? Among many other worthy activities (as set forth in recent federal pleadings), it researched
Cancer — metastasis, targeted therapies, and machine-learning models of chemotherapy response
Infectious disease and drug resistance
The microbiome
Environmental toxins, including microplastics and fertility
Neurology — Parkinson's, multiple sclerosis, Alzheimer's, and stroke; long-term effects of childhood cancer treatment
Biotechnology — organ chips, a new class of anesthetics, and spaceflight effects on blood-cell formation
Technology — quantum computing, AI and machine learning, nanomaterials, and batteries
Defense and security — battlefield injuries, soft robotics, deployable structures, radiation countermeasures, and secure computing.
Do we really wish to stifle these gifts?
Thank you for your attention to my comment.
