The following comments were submitted by Richard Besser, MD, Robert Wood Johnson Foundation President and CEO, in response to the Racial Nondiscrimination in Private Schools proposed rule.
On behalf of the Robert Wood Johnson Foundation (hereinafter “RWJF”), I am submitting comments in response to the Notice of Proposed Rulemaking titled “Racial Nondiscrimination in Private Schools” (hereinafter “the proposed rule”), published by the U.S. Department of the Treasury (hereinafter “Treasury Department”) and the Internal Revenue Service (hereinafter “IRS”) in the Federal Register on September 4, 2026.1
RWJF is a leading national philanthropy dedicated to taking bold leaps to transform health in our lifetime. Through funding, convening, advocacy, and evidence-building, we work alongside communities, practitioners, researchers, nonprofit organizations, and public institutions to get to health equity faster and pave the way together to a future where health is no longer a privilege, but a right. Our comments are grounded in the perspectives and expertise of our grantees, which include nonprofit organizations, researchers, and educational institutions that are committed to promoting health, wellbeing, and scientific innovation.
RWJF strongly opposes the Treasury Department’s and IRS’s proposal to deny or revoke the tax-exempt status of private universities, as well as private primary, secondary, preparatory, and high schools, that purportedly “discriminate” in educational, admissions, or other policies. Although presented as an effort to prevent racial discrimination, the proposed rule would greatly disincentivize schools from taking the necessary steps to ensure equal opportunity for students of all races. Further, the lack of clarity in the proposed rule could lead schools to remove important race-related content from their curricula and research—content that is foundational to advancing health equity and improving the health of our nation as a whole. This lack of clarity also makes it difficult to provide comments that comprehensively respond to the proposed rule.
Te proposed rule relies heavily on an expansive interpretation of the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.2 Yet that ruling only applied to race-based admissions in higher education. By forcing an expansive interpretation of the Students for Fair Admissions ruling onto private schools' policies and programs on a wide range of matters, the proposed rule undermines the academic integrity of academic institutions, including schools and programs to train health professionals, and their ability to prepare the next generation of health professionals and researchers to tackle the nation’s most pressing health challenges. It would impede innovations that reduce racial disparities and improve health outcomes for patients of all races and would make it more difficult to recruit and train students who are the most likely to provide care in communities with healthcare provider shortages.
RWJF’s concerns center on three overarching points about how implementation of the proposed rule would diminish health outcomes for all communities:
- The proposed rule would limit efforts to foster equal opportunities in access to higher education. In restricting access to financial aid and scholarships for students of color, the proposed rule would reduce student diversity in health-related professions. A diverse workforce has been found to increase culturally competent care, reduce bias, and improve health outcomes for all communities.
- Ambiguity in the proposed rule would lead private institutions of higher education to remove curricula focused on health equity. Threatening an institution’s tax-exempt status could disincentivize schools from teaching aspiring health professionals about health disparities and social determinants of health, which research has demonstrated is essential to delivering adequate treatment for all communities.
- The proposed rule would upend health research. The proposed rule would inevitably lead private institutions to revise or even censor their research programs, leading to a lesser understanding of the drivers of health disparities and fewer medical advances that make care more effective and equal.
Overview of the Proposed Rule
The proposed rule states that private primary and secondary schools, colleges, professional or trade schools, and universities that maintain “any policy or practice that discriminates on the basis of race, color, or national or ethnic origin” are not being operated exclusively for charitable purposes and would be ineligible for tax-exempt status as a 501(c)(3) organization. Specifically, race-conscious educational policies, admissions policies, scholarship programs, and loan programs would be under scrutiny from the federal government. Explanatory statements in the proposed rule say the rule is designed to prohibit race-conscious policies “for any purpose," including those seeking to ensure student diversity.
The administration has exploited broad and intentionally vague bans on “unlawful diversity, equity, and inclusion (DEI)” and related concepts to target lawful evidence-based programs, research, and services. Through executive orders, investigations, the withholding of federal funding, and other executive actions, the administration has made clear its intent to deter future work that is essential to closing health gaps. The proposed rule is the next iteration of these actions, as the proposal will likely create a chilling effect among educational institutions. Given the importance that having tax-exempt status has for private educational institutions, they will likely assess every policy, program, or fund that even remotely considers race, color, or national or ethnic origin—across admissions, scholarships and loans, athletics, curricula, research, programming, and third-party partnerships. The review and possible modification of these programs will be time-consuming, expensive, and may require obtaining donor consent or court approval. The breadth of such a review would be enormous.
The cost of making this assessment will fall particularly hard on smaller private institutions of higher education (IHEs), including Historically Black Colleges and Universities (HBCU), Hispanic Serving Institutions, Asian American and Native American Pacific Islander Serving Institutions, Tribal Colleges and Universities, and other Minority Serving Institutions (MSI). Given the chronic underfunding of these institutions, and the high rates at which they produce doctors and other medical professionals from diverse backgrounds, this rule’s impact on the health field is especially concerning.3, 4 The proposed rule would very likely result in changes to the way schools of all types support students from diverse backgrounds. Although HBCU or MSI status alone would not affect an institution’s tax exemption, the proposed rule offers no assurance that mission-driven scholarships, pipeline programs, and partnerships at these institutions would not draw scrutiny.
The Treasury Department and IRS estimate that the proposed rule may affect as many as 18,000 private educational institutions and roughly 750,000 students attending these schools who may qualify for scholarships allocated on the basis of race, color, or national or ethnic origin. The proposed rule would have significant implications on the ways students access education, what is taught in private schools, and the research these schools conduct. Closing pathways for students of color and diminishing the teaching and study of race-conscious care significantly threatens the integrity of the private educational system, health professions, our nation’s healthcare system, and the health of our nation’s people.
Proposed rule’s negative impact on financial aid and educational access
The proposed rule would preclude a school's exemption from Federal income tax under section 501(c)(3) of the tax code if it administers any scholarships or other financial aid based on race, color, or national or ethnic origin. According to the “Explanation of Provisions” section of the proposed rule, this would be the case regardless of the intent behind the action, such as efforts seeking to remediate past discrimination or advance diversity-related objectives. As discussed above, the proposed rule relies on an expansive interpretation of the U.S. Supreme Court's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which only applied to admissions policies.5 It did not apply to scholarships or financial aid that are provided through private funding sources.
Private funding sources are an essential driver in expanding access to education. Students of color may come from low-income backgrounds and lack the financial resources to access higher education without significant financial aid. Private donors view race-conscious aid as a tool to help close historic wealth and opportunity gaps in education, ensuring that students from diverse backgrounds are not priced out of quality education.6 Students who receive race-conscious scholarships increase completion rates above that of other students. For example, an analysis of the University of New Mexico’s student outcomes revealed that graduation rates amongst recipients of race-conscious and other merit-based scholarships ranged between 80 percent and 95 percent, compared with 52 percent for all students.7
The proposed rule would likely lead most private IHEs to cease administering any scholarships or other financial aid that takes race, color, or national or ethnic origin into account. This, in turn, would exacerbate the financial barriers to higher education faced by students of color and likely contribute to a decline in their enrollment, degree completion, and entry into the health workforce.8, 9 Unfortunately, this rule comes in addition to a Department of Education regulation from earlier this year that limited access to graduate student loans and lowered loan limits in ways that will disproportionately harm low-income students of color.10, 11
Diversity in healthcare is a quality and safety issue. A group of people from diverse backgrounds who train together learn from each other, which helps to reduce racial or ethnic stereotyping and leads to better communication between patients and their healthcare providers.12 This promotes culturally competent care by students of all backgrounds, which contributes to better outcomes for all patients.13 Diverse care teams are also more likely to challenge assumptions, reduce bias, and improve decisionmaking.14, 15
While all patients benefit from health provider diversity, patients of color experience particular benefits. For example, evidence shows that a racially diverse care team can produce measurably positive health outcomes for minority patients. This is due to both increased patient comfort or trust and healthcare provider insights into care arising from personal knowledge or experience.16
A more diverse health workforce also helps address provider shortages in urban and rural communities. Minority health professionals show higher rates of following through on stated commitments to practice in medically underserved communities.”17, 18 Physicians and other health professionals from underrepresented racial and ethnic backgrounds are also more likely to practice primary care.
Proposed rule’s negative impact on curricula for training in health professions
The proposed rule’s lack of clarity on what is covered by “racial discrimination in education" and its statement that it would apply to "any policy or practice" would likely lead private IHEs to revise curricula, removing courses or parts of courses that explore issues related to race and racism. While the proposed rule’s stated intent is to prevent racial discrimination, credible concerns exist that educational institutions would feel pressured to remove the teaching of content necessary to prepare medical students and other health professionals to do their jobs effectively.
Learning about how discrimination affects health outcomes is a foundational part of medical education. Limiting such curricula robs students of being fully educated about fundamental aspects of effective clinical and public health practice. Research has extensively proven the ties between social inequity and population health; by reducing social inequity, we can reduce disparities in health-related risks, exposures, and outcomes.19 Research has also proven how social determinants of health continue to drive health inequities despite great advances in biomedical science and healthcare.20
Understanding a patient’s environment and experience in the healthcare system can help health practitioners understand how to dismantle or mitigate structural barriers and inform treatment plans that best deliver positive health outcomes for all patients.21 The curbing of curricula therefore threatens long-term outlooks for patient-centered care. Provisions that restrict or disfavor teaching on topics deemed politically controversial, such as health equity, would narrow the scope of inquiry, discourage work on urgent public health challenges, and limit breakthroughs in medical science. Restricted curricula would also impede the dissemination of findings, limit the ability to translate new knowledge into practice, and reduce health professionals’ and students’ ability to engage in the scientific exchange that drives improvement and innovation.22 Together, these changes would erode the infrastructure of science that the public relies on for safe, effective, and equitable health interventions.
Proposed rule’s negative impact on research
As noted above, the proposed rule goes far beyond the holding of Students for Fair Admissions by preventing private schools from considering race in any area of a school’s operations. The proposed rule’s lack of clarity on what constitutes racial discrimination and the application to "any policy or practice"23 may lead private IHEs to revise their research programs in such a manner that reduces research on drivers of health disparities and how to address them. The research of universities on everything from cancer to maternal mortality rates is already in jeopardy because of the administration’s attacks on DEI.24 The proposed rule would make matters even worse by using the threat of withdrawing a private university’s tax-exempt status based on unclear rules about what may or may not constitute racial discrimination. We welcome the administration’s recent actions that acknowledge and aim to address treatment gaps and research disparities related to women’s health and would hope the administration would apply a similar principle to race-based health disparities.25 However, the proposed rule takes us further away from efforts to address health disparities.
Race-conscious research can help identify clinical and public health strategies that not only reduce health disparities but also improve health outcomes for all populations.26 It is not a zero-sum exercise where some lose and some gain. For example, non-Hispanic Black women suffer disproportionate hypertensive-related morbidities and are three times more likely to die of preeclampsia than White women.27 To study how to reduce these racial disparities, researchers gave blood pressure cuffs to postpartum patients of all races and connected them with healthcare providers via text messaging. Blood pressure readings increased from 70 percent to 91 percent in non-Black patients and from 33 percent to 93 percent among Black patients. No patients in the intervention group were readmitted to the hospital for hypertension-related complications, while four patients in the control group were readmitted.28
In another example, race-conscious interventions to close disparities in cancer treatments included health equity training for healthcare providers, tracking healthcare quality by race, and using culturally competent nurse navigators. It resulted in Black and White patients receiving timely lung cancer surgeries at nearly equal rates—not at the expense of one group over the other, but by improving outcomes for everyone. Timely lung cancer surgery increased from 59 percent to 87 percent for Black patients and from 75 percent to 85 percent for White patients.29 This proposed rule threatens the ability of private IHEs to do the research that leads to these successful clinical interventions.
Finally, the proposed rule would also limit the ability of federal health programs to improve public health outcomes. A myriad of health-related priorities, such as disease surveillance, reducing maternal mortality, addressing opioid-related harms, and expanding access to primary care depend on understanding how and why outcomes differ across populations. Such priorities are advanced using university-based research that relies on best practices and the most up-to-date understandings of science and medicine. This includes race-conscious considerations. For instance, protecting diversity in clinical trials is essential to deriving the generalizability of results.30 Limiting the research that helps explain racial disparities would weaken the evidence base for effective intervention design, reduce the ability of programs to respond to documented disparities, and ultimately diminish the effectiveness of federal health programs in improving outcomes and closing persistent gaps in care.
Conclusion
The proposed revisions to Federal tax-exempt status would have far-reaching consequences for access to education, public health programs, healthcare delivery, and health research. Although framed as a reform to ensure racial nondiscrimination, the proposed changes would negatively impact access to educational opportunities for many students of color and likely disincentivize the teaching and study of fundamental principles that address access to and outcomes in the healthcare system.
As described in these comments, the proposed rule would limit diversity in the healthcare workforce, make it more difficult to teach about and address barriers to health, and undermine research that improves lives. It would narrow the space for health equity and DEI work that helps systems perform better for everyone. The nation’s health challenges require a diverse workforce to meet the needs of a diverse population, more innovation, and stronger collaboration, not greater uncertainty and politicization in the medical and scientific fields. For the reasons stated above, RWJF strongly opposes the proposed rule and urges the Treasury Department and IRS to withdraw it.
We have included numerous citations to support our conclusions, including direct links to research. We direct the Treasury Department and IRS to review each of the materials we have cited and made available through active links, and we request that the full text of each of the studies and articles cited, along with the full text of our comment, be considered part of the formal administrative record for purposes of the Administrative Procedure Act. If the Treasury Department and IRS are not planning to consider these materials part of the record as we have requested here, we ask that you notify us and provide an opportunity to submit copies of the studies and articles into the record.
1 Racial Nondiscrimination in Private Schools, 91 Fed. Reg. 56,811 (proposed Sept. 4, 2026) (to be codified at 26 C.F.R. pt. 1), https://www.federalregister.gov/documents/2026/09/04/2026-18127/racial-nondiscrimination-in-private-schools.[NA1]
2 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
3 Alisa Cunningham, Eunkyoung Park, Jennifer Engle, Minority-Serving Institutions: Doing More with Less, Institute for Higher Education Policy, (February 2014), https://vtechworks.lib.vt.edu/server/api/core/bitstreams/1668ef16-bdb2-4c40-ac5b-412643eaac6e/content.
4 Marybeth Gasman, Tiffany Smith, Carmen Ye, Thai-Huy Nguyen, HBCUs and the Production of Doctors, AIMS Public Health (Nov. 2017), https://pmc.ncbi.nlm.nih.gov/articles/PMC6111265/.
5 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
6 Liam Knox, Addressing Scholarships’ Equity Problem, Inside Higher Ed, (July 2024), https://www.insidehighered.com/news/students/financial-aid/2024/07/26/connecting-minority-students-private-scholarships.
7 Meredith Kolodner and Joanna Hou, Cutting race-based scholarships blocks path to college, students say, The Hechinger Report, (Aug. 2024), https://hechingerreport.org/cutting-race-based-scholarships-blocks-path-to-college-students-say/.
8 Jon Marcus, Funding Cuts, Shifts in Aid Make College Harder to Afford for Low-Income Families, The Hechinger Report, (Feb. 2026), https://www.usnews.com/news/national-news/articles/2026-02-09/funding-cuts-shifts-in-aid-make-college-harder-to-afford-for-low-income-families.
9 College Enrollment Rates, National Center for Education Statistics (May 2024), https://nces.ed.gov/programs/coe/indicator/cpb.
10 Philanthropies Focused on Health Respond to Department of Education’s Proposed Regulations to Define “Professional” Degree, Robert Wood Johnson Foundation, (Mar. 2026), https://www.rwjf.org/en/insights/advocacy-and-policy/regulatory-comments/2026/03/philanthropies-focused-on-health-respond-to-department-of-educations-proposed-regulations-to-define-professional-degree.html.
11 Reimagining and Improving Student Education—Federal Student Loan Program Final Regulations, 91 Fed. Reg. 23,768 (May 1, 2026) (to be codified at 34 C.F.R. pts. 674, 682, 685), https://www.federalregister.gov/documents/2026/05/01/2026-08556/reimagining-and-improving-student-education-federal-student-loan-program-final-regulations.[NA2]
12 Amicus Brief by the Association of American Medical Colleges, filed in the SFFA v. Harvard, (July 28, 2022), https://www.supremecourt.gov/DocketPDF/20/20-1199/232119/20220728171113348_20-1199%20and%2021-707%20Amicus%20Brief%20for%20Association%20of%20American%20Medical%20Colleges%20et%20al.pdf.
13 L.E. Gomez, Patrick Bernet, Diversity improves performance and outcomes, J Natl Med Assoc, (Aug. 2019), https://pubmed.ncbi.nlm.nih.gov/30765101/.
14 Ibid.
15 Jasmine Linabary and Moon Castro, “Small Group Communication: Forming & Sustaining Teams” (Jasmine Linabary Publishing, 2021), https://open.umn.edu/opentextbooks/textbooks/1049.
16 Amicus Brief by the Association of American Medical Colleges, filed in the SFFA v. Harvard, (July 28, 2022), https://www.supremecourt.gov/DocketPDF/20/20-1199/232119/20220728171113348_20-1199%20and%2021-707%20Amicus%20Brief%20for%20Association%20of%20American%20Medical%20Colleges%20et%20al.pdf.
17 Patricia Pittman et al., Health Workforce for Health Equity, 59 Medical Care S405, S405-S408 (2021), https://pubmed.ncbi.nlm.nih.gov/34524235/.
18 I.M. Xierali & M.A. Nivet, The Racial and Ethnic Composition and Distribution of Primary Care Physicians, 29 J. Health Care Poor & Underserved 556, 556-57 (2018), https://pubmed.ncbi.nlm.nih.gov/29503317/.
19 Areleen F. Brown, Grace X. Ma, et al, Structural Interventions to Reduce and Eliminate Health Disparities, Am J Public Health, (Jan. 2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6356131/.
20 A Conceptual Framework for Action on the Social Determinants of Health, World Health Organization, (July 13, 2010), https://www.who.int/publications/i/item/9789241500852.
21 Paula M. Lantz, Emma Carter, State Bans on “Divisive Concepts” in Public Higher Education: Implications for Population Health, Milbank Quarterly Opinion (April 24, 2024), https://www.milbank.org/quarterly/opinions/state-bans-on-divisive-concepts-in-public-higher-education-implications-for-population-health/.
22 Mike Stobbe, COVID-19 vaccine study that was blocked from CDC journal is published elsewhere, Associated Press (Jun. 23, 2026), https://apnews.com/article/cdc-covid-vaccine-effective-study-256e61b5ff4fcf3bfecd48826077e389.
23 Racial Nondiscrimination in Private Schools, 91 Fed. Reg. 56,811 (proposed Sept. 4, 2026) (to be codified at 26 C.F.R. pt. 1), https://www.federalregister.gov/documents/2026/09/04/2026-18127/racial-nondiscrimination-in-private-schools.[NA3]
24 Richard Besser, Comments from Richard Besser, MD, on OMB’s Proposed Rule to End Nonpartisan Federal Grantmaking Process, Robert Wood Johnson Foundation (July 2026), https://www.rwjf.org/en/insights/advocacy-and-policy/regulatory-comments/2026/07/rwjf-comments-on-omb-proposed-rule-to-end-nonpartisan-federal-grantmaking-process.html.
25 Exec. Order No. Pending, (Oct. 19, 2026), https://www.whitehouse.gov/presidential-actions/2026/10/advancing-womens-health-to-improve-outcomes-in-all-phases-of-life/.
26 Lauren Smith, Why Diversifying the Health Professions Matters for Everyone, RWJF, (Sep. 19, 2024) https://rwjf.org/en/insights/blog/2024/09/why-diversifying-the-health-professions-matters-for-everyone.html.
27 Sajid Shahul, Avery Tung, et al, Racial Disparities in Comorbidities, Complications, and Maternal and Fetal Outcomes in Women With Preeclampsia/eclampsia, Hypertens Pregnancy, (Nov. 2015), https://pubmed.ncbi.nlm.nih.gov/26636247/.
28 A. Hirshberg, M., Sammel, M., and S.K. Srinivas, Text Message Remote Monitoring Reduced Racial Disparities In Postpartum Blood Pressure Ascertainment, American Journal of Obstetrics & Gynecology, (Sept. 2019), https://www.ajog.org/article/S0002-9378(19)30669-6/abstract.
29 How Equity Strategies Can Make Healthcare Better for Everyone, RWJF, (May 2025), https://www.rwjf.org/en/insights/our-research/2025/05/how-equity-strategies-can-make-healthcare-better-for-everyone.html.
30 Rebecca Johnson, The Impact of DEI Ban On Clinical Research Ecosystem, Applied Clinical Trials, (April 11, 2025), https://www.appliedclinicaltrialsonline.com/view/the-impact-of-dei-ban-on-clinical-research-ecosystem.
About the Robert Wood Johnson Foundation
RWJF is a leading national philanthropy dedicated to taking bold leaps to transform health in our lifetime. Through funding, convening, advocacy, and evidence-building, we work side-by-side with communities, practitioners, and institutions to get to health equity faster and pave the way together to a future where health is no longer a privilege, but a right.
Affirming Diversity, Equity, and Inclusion
RWJF is committed to defending and advancing the fundamental American values of diversity, equity, and inclusion with resolve and urgency.