Philip Hackney (University of Pittsburgh) and Ellen P. Aprill (Loyola Los Angeles): COMMENTS ON PROPOSED REGULATIONS, Racial Nondiscrimination in Private Schools, IRS REG-119986-25, 91 Fed. Reg. 56,811 (Sept. 4, 2026) (“NPRM”), November 4, 2026:
On September 4, 2026, the Treasury Department and the Internal Revenue Service proposed regulations entitled Racial Nondiscrimination in Private Schools (REG-119986-25). The proposal would deny tax-exempt status to any private school adopting a policy or practice that discriminates on the basis of race, color, or national or ethnic origin “for any purpose,” and would delete the provisions of Revenue Procedure 75-50 that have authorized private schools to adopt minority-favoring admissions and financial assistance programs since 1975.
These comments, filed with Treasury and the IRS, argue that the proposed regulations exceed the agency’s authority and fail the requirements of the Administrative Procedure Act. They assemble the administrative record the rulemaking would reverse: a Treasury regulation in force since 1959, a 1972 regulation treating a private foundation’s ethnic-minority scholarship program as consistent with section 501(c)(3), ten published revenue rulings issued between 1967 and 1977, six memoranda of the Office of Chief Counsel, provisions of Revenue Procedure 75-50 the Service expressly retained in 2019, two determinations concerning the same school twenty-four years apart, and a private letter ruling issued nine months after Students for Fair Admissions. The preamble to the proposed regulations engages three items in that record.
The comments argue that Bob Jones University v. United States conditioned the Service’s authority on the sustained convergence of all three branches; that the common law of charitable trusts, from which section 501(c)(3) draws the meaning of “charitable,” distinguishes invidious exclusion from remedial inclusion; that the proposed regulations reverse six decades of the agency’s own position without acknowledgment or explanation; and that the rulemaking is arbitrary and capricious under the Administrative Procedure Act.
