Critics of recent efforts to regulate for-profit colleges have suggested that the Obama Administration is waging a “war” on for-profit universities.
The reality is exactly the opposite: the for-profit sector is challenging a centuries-old practice of separating philanthropy from business.
Since the Elizabethan statute of charitable uses in 1601, Anglo-American law has sought to encourage charitable giving to promote the common good. The idea behind modern philanthropy is that nonprofits undertake services that are either inappropriate for market activity or would not be supported by the market. To ensure that these goods are provided, the state both provides them itself through public institutions and offers private nonprofits legal privileges (such as incorporation) and economic incentives (such as tax benefits).
In 1874, Massachusetts passed one of the earliest general laws exempting from taxation any “educational, charitable, benevolent, or religious” institution. Believing that citizens, not just the state, should promote the common good, Massachusetts sought to encourage citizens to devote their money to institutions that would serve the public. Implicit was the assumption that certain kinds of activities — educational, charitable, benevolent, and religious activities in particular — should be done as a service and not for a profit. Massachusetts’ law became a model for other states.
In the modern era, tax incentives are one of the primary ways in which the state encourages nonprofit institutions, whether churches, local grassroots associations, large endowed philanthropies, or universities. The state also subsidizes nonprofits that serve the community, especially in social services and education. As Olivier Zunz has demonstrated in his recent book Philanthropy in America, Americans have not only given generously but benefited greatly from philanthropy.
This is not to suggest that the history of American philanthropy is without conflict. After the American Revolution, many Americans worried about what Anglo-Americans called the “dead hand of the past.” Thomas Jefferson was among them. He believed that permanent endowments enabled one generation to influence the affairs of the next in ways that threatened democracy. “The earth belongs in usufruct to the living; . . . [and] the dead have neither powers nor rights over it,” proclaimed Jefferson in 1789.
These questions re-emerged in the 20th century. Many Americans reacted with great concern when Andrew Carnegie and others used their wealth to engage in philanthropic endeavors that some opposed. During the Cold War, foundation-sponsored research led some policymakers to question foundations’ power and political agenda. Similar concerns can be raised about the Gates Foundation today. Private philanthropies’ wealth may give them undue influence in public deliberation. Philanthropy, no less than business, requires regulation.
Moreover, public and nonprofit institutions become corrupted when profit becomes their goal rather than a means to fulfilling their mission. This has happened to some extent in American universities that invest in tangentially related programs like big-time sports. Since the passage of the Bayh-Dole Act (1980), which permitted universities to profit from publicly funded research, universities have encouraged marketable rather than socially beneficial science. Moreover, in an era of state defunding, many policy makers are urging universities to act more like businesses, even when doing so perverts their mission and institutional culture.
The state must ensure that both public and nonprofit institutions remain true to their civic mission in return for the legal and financial benefits they receive. This point was made recently by Robert Zemsky, a member of President George W. Bush’s Spellings Commission. In Making Reform Work, Zemsky urges colleges to talk constantly “about purposes, about ends rather than means,” to hold fast against the temptations of profit.
Whether colleges are for-profit or not matters a lot. It affects their mission, their culture, their labor practices and, most important, the lessons they offer students. For-profit education implies that education is a commodity bought for the advantage it provides. It makes no pretense that service is a necessary part of being a college graduate. In fact, even if it did, students are too smart to believe it. They know what they are buying -- a degree from a vendor. We expect businesses to make money, but we do not want our churches and schools to treat us as consumers but as congregants and students.
For-profits must be regulated as businesses. They are not charities, despite being subsidized heavily by public student loan dollars. In reality, in return for these public subsidies, for-profits should live by the same rules as other nonprofits. They should make the common good their primary goal and reinvest all revenue to fulfill their mission. They will not, however, because, as Kevin Kinser argues in From Main Street to Wall Street, they exist to generate wealth for investors and shareholders. As recent scandals have made clear, for-profit institutions in higher education, like other Wall Street businesses, too often put their bottom line ahead of the common good.
For-profit higher education’s advocates are declaring war on American philanthropy. They seek to profit off of charity, transforming what should be a service into another way to gain wealth. They threaten a distinction that has deep roots in American history and law. They suggest that all goods -- including education, charity, and religion -- should be commodities. History and common sense tell us otherwise. While the line between the for-profit and nonprofit sectors can be blurry at times, the differences between them are very real, of moral significance, and worthy of protection.