Part I of this Article examines how the Equal Protection Clause limits the government's ability to engage in race-based affirmative action. Part I focuses on how constitutional law analysis has evolved in light of the Supreme Court's recent decisions in Grutter v. Bollinger and Gratz v. Bollinger. Part II provides a brief description of tax law's public policy limitation. This part shows how the IRS, though not required to do so, has generally followed Equal Protection Clause jurisprudence when applying the public policy limitation to race-based activity by private tax exempt 501(c)(3) institutions. Part III discusses how the Supreme Court's decisions in Grutter and Gratz will likely impact the way in which the IRS interprets the public policy limitation as a factor in determining the permissibility of race-based affirmative action by tax exempt 501(c)(3) institutions. Finally, this Article concludes that despite a contrary rule with respect to public institutions, private 501(c)(3) tax exempt institutions are not necessarily prohibited from using race as a deciding factor when making important decisions about matters such as admission to a private university.
Available at: http://works.bepress.com/david_brennen/3/