Dyllan Taxman (J.D. 2019, Georgetown), What About Bob: The Continuing Problem of Federally-Subsidized LGB Discrimination in Higher Education, 34 Wis. J.L. Gender & Soc'y 39 (2019):
The time has come to reconsider whether colleges and universities that discriminate against lesbian, gay, and bisexual (LGB) students and applicants through restricted access to married housing, discriminatory codes of conduct, and other means deserve federal tax benefits. In Bob Jones University v. United States, the United States Supreme Court held that universities adhering to racially discriminatory admissions processes and exercising racially discriminatory codes of conduct are not "charities" under the U.S. Tax Code, and are not entitled to tax-exemption and other tax benefits. The Court relied on the common law of charitable trust enforcement to decide that institutions violating the law or clear public policy need not receive the tax benefits owed to a charity, even though the would-be charity promotes and furthers educational or religious goals usually associated with a tax-exempt institution.
This Article proposes extending the principles from Bob Jones to LGB discrimination in higher education, and suggests that discriminating institutions should be denied tax exemptions available to charities. ...
Admittedly, the evidence in this Article supporting a widely-held public policy lacks the near-absolute unanimity of public and private condemnation of racial segregation in education. Yet, as a society and as a nation, the United States has seen a dramatic shift in public belief about the deserved dignity and equality of our LGB citizens, through private and public voices. Contemporary concern for the preservation of religious freedom if institutions of higher education are forced to choose between non-discrimination and tax benefits should not be dismissed, but there were undoubtedly those who harbored similar fears when Bob Jones was decided. Those concerned were not prohibited from continuing to discriminate in furtherance of genuinely-held beliefs-indeed, Bob Jones University continued its practices for seventeen years after it lost its tax benefits.
Not long ago, the public policy relied upon in Bob Jones had not been sufficiently recognized, and the federal government subsidized racial discrimination in private schools. As Americans reflect on the years before Bob Jones, they may lament that the state failed to act sooner. They may ask why our nation did not prevent its citizens from financing a practice that most found abhorrent. If we fail to recognize current developments in public policy with regard to LGB rights, future generations may ask why we failed to act sooner.