Clarksdale Baptist Church v. Green Brief for Respondents William H. Green in Opposition to Certiorari

    No. 83-2110

In The

§ u jrn w  (kmtri nf %  UnttFii i>tatp£
October Term, 1984

Clarksdale Baptist Church,
Petitioner,

v.

W illiam H. Green, et at., and 
Donald T. Regan, Secretary of the Treasury 

of the United States, et al.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENTS WILLIAM H. GREEN, et al. 
IN OPPOSITION TO CERTIORARI

Robert H. Kapp 
Joseph M. Hassett 
Sara-A nn Determan 
David S. Tatel 
Walter A. Smith , Jr.
Patricia A. Brannan 

Hogan & Hartson 
815 Connecticut Avenue, N.W. 
Washington, D.C. 20006 
(202) 331-4500

William L. Robinson 
Norman J. Chachkin * 
Frank R. Parker 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212

Attorneys for Respondents 
William H. Green, et al.

* Counsel of Record

W i l s o n  - Ep e s  Pr i n t i n g  C o . ,  In c . . 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D .C ,  2 0 0 0 1



A  1980 decree in this case requires the Internal Reve­
nue Service (IRS) to apply specified evidentiary stand­
ards, derived from federal court rulings in analogous 
suits, in determining whether or not Mississippi private 
schools (including those operated by churches) follow a 
racially discriminatory policy which makes them ineligi­
ble for federal tax exemption (and consequent tax de­
ductibility of contributions to them). Petitioner operates 
a private school in Mississippi and seeks to maintain its 
federal tax-exempt status without being required to dem­
onstrate that it is nondiseriminatory, in accordance with 
those standards. The questions presented are:

1. Does a requirement that the IRS collect and con­
sider information regarding the establishment, history, 
student enrollment (by race) and staff employment (by 
race) of Mississippi non-public schools which are affili­
ated with churches, when IRS determines whether those 
schools are eligible for federal tax exemption, violate the 
Establishment Clause of the First Amendment because it 
creates “ excessive entanglement” between the federal gov­
ernment and the churches?

2. Is it irrational, arbitrary, and violative of the 
First Amendment to infer that a Mississippi church- 
operated non-public school— which (a) opened its doors 
the very day when local public school desegregation be­
gan, (b) tripled its white student enrollment five years 
later when public school integration accelerated, and (c) 
has never enrolled a black student nor employed a black 
teacher— follows a racially discriminatory policy and is 
ineligible for federal tax exemption unless the school can 
demonstrate by clear and convincing evidence that it is 
nondiseriminatory?

3. Does the district court’s order require petitioner, or 
any other Mississippi church school, as a condition of

QUESTIONS PRESENTED

(i)



11

eligibility for federal tax exemption, to take any specific 
action contrary to its religious beliefs, thus violating any 
rights under the Free Exercise Clause of the First 
Amendment?

4. Did the plaintiffs, parents of black public school­
children, have standing to bring this case and seek effec­
tive relief, in light o f the findings that federal tax exemp­
tions were critically important to the continued opera­
tion of racially discriminatory Mississippi private schools, 
and that such institutions materially impeded public 
school desegregaton throughout the state (including the 
minor plaintiffs’ school districts) ?



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ___       i

STATEMENT ......................      1

Proceedings B elow ........ ..........     2

Statement of Facts...............    6

REASONS WHY THE WRIT SHOULD BE DENIED.. 8

CONCLUSION ________________     18

TABLE OF AUTHORITIES
Cases:

Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969) .... ............. ........................... 7n

Allen v. Wright, 52 U.S.L.W. 5110 (U.S. July 3,
1984) .............................. ........................................... 2, 12

Bob Jones University v. United States, 461 U.S.
------ •, 76 L. Ed. 2d 157 (1983)............................... 8, 9n

Bob Jones University v. United States, 639 F.2d
147 (4th Cir. 1980), aff’d, 461 U .S .------ , 76 L.
Ed. 2d 157 (1983)_________ ___________ __ _____ 9n

Brumfield v. Dodd, 425 F!. Supp. 528 (E.D. La.
1976) ................ ........................................ ..............lOn, 1 In

Coffey v. State Educational Finance Commission,
296 F. Suppi. 1387 (S.D. Miss. 1969) ..................7n, l ln

Coit v. Green, 404 U.S. 997 (1971), aff’g mem.
Green v. Connolly, 330 F. Supp. 1150 (D.D.C.
1971) ..........- __________ ____ _________________ 12n

EEOC v. Mississippi College, 626 F.2d 477 (5th
Cir. 1980), cert, denied, 453 U.S. 1272 (1981) ....9n, lOn 

Gilmore v. City of Montgomery, 337 F. Supp. 22 
(M.D. Ala. 1972), aff’d in relevant part, 473 
F.2d 832 (5th Cir. 1973), aff’d in relevant part,
417 U.S. 556 (1974)........... ......... ................ ........lOn, l ln

(iii)



IV

TABLE OF AUTHORITIES—Continued
Page

Goldsboro Christian Schools, Inc. v. United States,
436 F. Supp. 1314 (E.D.N.C. 1977), aff’d mem.,
464 F.2d 879 (4th Cir. 1981), aff’d sub nom. Bob
Jones University v. United States, 461 U .S.------ ,
76 L. Ed. 157 (1983)............... ................................. 9n

Green v. Connally, 330 F. Supp. 1150 (D.D.C.), 
aff’d mem. sub nom. Coit v. Green, 404 U.S. 997
(1971) ___________________ ______ ___ ____ __ _ 2, l ln

Green v. Kennedy, 309 F. Supp. 1127 (D.D.C.), 
appeal dismissed sub nom. Cannon v. Green, 398
U.S. 956 (1970) ............ .................. ........................  11

Henry v. Clarksdale Municipal Separate School
District, 433 F.2d 387 (5th Cir. 1970).............. . 7n

Henry v. Clarksdale Municipal Separate School 
District, 409 F.2d 682 (5th Cir.), cert, denied,
396 U.S. 940 (1969)____________ _______ ______ 7n

Jones v. Wolf, 443 U.S. 595 (1979) ........................  l ln
Knowles v. Board of Public Instruction of Leon

County, 405 F.2d 1206 ( 5th Cir. 1969) ...............  13
Leary v. United States, 395 U.S. 6 (1969)............. l ln
McCormick v. Hirsch, 460 F. Supp. 1337 (M.D.

Pa. 1978) _________________ ______ ___ - ....... 9n
Meek v. Pittenger, 421 U.S. 349 (1978) _________  9n
Moore v. Tangipahoa Parish School Board, 298 F.

Supp. 288 (E.D. La. 1969).................................. . 13
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

(1979) ........................... ........................................... 9n
Norwood v. Harrison, 413 U.S. 455 (1973)............. 3
Norwood v. Harrison, 410 F. Supp. 133 (N.D.

Miss. 1976), aff’d and remanded, 581 F.2d 518
(5th Cir. 1976)..... ................................... ................  4n

Norwood v. Harrison, 382 F. Supp. 921 (N.D.
Miss. 1974) ___________ _________—.3, 4, 6, 9, lOn, l ln

Stell v. Savannah-Chatham County Board of Edu­
cation, 255 F. Supp. 88 (S.D. Ga. 1966) ......... . 13

Synanon Foundation, Inc. v. California, 444 U.S.
1307 (1979) (Rehnquist, J., Circuit Justice).... l ln  

Tot v. United States, 319 U.S. 643 (1943)______  l ln



V

United States v. California Cooperative Canneries,
279 U.S. 553 (1929).......... .................... ................  13

United States v. Freedom Church, 613 F.2d 316
(1st Cir. 1979) ........................................................ l ln

United States v. Mississippi, 499 F.2d 425 (5th
Cir. 1974) .................................................................. lOn

United States v. School District of Omaha, 376 F.
Supp. 198 (D. Neb. 1973) .............. ......................  13

Usery v. Turner Elkhorn Mining Company, 428
U.S. 1 (1976)............................... ................ ............  12n

Walz v. Tax Commission, 397 U.S. 644 (1970)____ 8n, 9n

Other Authorities:
U.S, Sup. Ct. Rule 17.1 ( c ) ...... ................................... 12

TABLE OF AUTHORITIES—Continued
Page



In The

(tart nf tl|r Imtrit
October Term, 1984

No. 83-2110

Clarksdale Baptist Church,
Petitioner,

v.

W illiam H. Green, et at., and 
Donald T. Regan, Secretary of the Treasury 

of the United States, et at.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENTS WILLIAM H. GREEN, et al. 
IN OPPOSITION TO CERTIORARI

STATEMENT

This case involves the entitlement to federal tax ex­
emption of “ large numbers of segregated private schools 
. . . established in the State [of Mississippi] for the pur­
pose of avoiding a unitary public school system,” where 
“ tax exemptions were critically important to the ability 
of such schools to succeed”  and “ the connection between 
the grant of tax exemptions to discriminatory schools and



2

desegregation of the public schools . . . was close enough 
to warrant the conclusion that irreparable injury to the 
interest in desegregated education was threatened if the 
tax exemptions continued.”  Allen v. Wright, 52 U.S.L.W. 
5110, 5118 (U.S. July 3, 1984).

Proceedings Below
In 1971 the district court directed the Internal Reve­

nue Service to follow certain specified procedures in de­
termining whether Mississippi private schools, including 
those operated by churches,1 were eligible for tax-exempt 
status. Green v. Connolly, 330 F. Supp. 1150 (D.D.C.), 
aff’d mem. sub north. Coit v. Green, 404 U.S. 997 (1971). 
In 1976 the plaintiffs sought further relief, alleging that 
the 1971 decree had proved ineffective— as demonstrated 
by the continued federal tax exemption of Mississippi 
private schools determined to be racially discriminatory 
in contested federal court proceedings.

Plaintiffs’ motion2 asserted that while the three-judge 
court had, in 1971, declined to impose more specific in­
junctive relief because IRS Commissioner Thrower had 
promised to review the tax-exempt status of nine named 
Mississippi private schools in accordance with proper 
legal standards,3 six o f these schools were still tax-exempt 
in 1976. More significant, these six private schools also 
had been unable to meet the criteria established by the 
United States District Court in Mississippi for demon­
strating that they were not racially discriminatory— a

1 See Plaintiffs’ Opposition to Application of Clarksdale Baptist 
Church for Stay Pending- Appeal, Clarksdale Baptist Church v. 
Green, No. A-162 (U.S. Oct. 3, 1983) [hereinafter cited as “ Stay 
Opposition” ] 7-8 n.9.

2 Plaintiffs’ 1976 Motion for an Order Substituting Parties De­
fendant, to Enforce Decree and for Further Relief was reproduced 
as Appendix “A” to their Stay Opposition herein.

3 See Green v. Connally, 330 F. Supp. at 1176 n.53 and ac­
companying text.



3

necessary precondition to obtaining free textbooks for 
their students. See Norwood v. Harrison, 413 U.S. 455 
(1973),4 on remand, 382 F. Supp. 921 (N.D. Miss. 
1974).® Indeed, in passing upon disputed private school

4 Norwood was a. suit challenging the constitutionality of a pro­
gram under which the State of Mississippi was providing free 
textbooks for use by white pupils enrolled in private segregation 
academies established to avoid public school desegregation. This 
Court reversed the dismissal of the case because

. . . the Mississippi textbook program . . . significantly aids 
the organization and continuation of a separate system of 
private schools which, under the District Court holding, may 
discriminate if they so desire. A State’s constitutional obli­
gation requires it to steer clear, not only of operating the old 
dual system of racially segregated schools, but also of giving 
significant aid to' institutions that practice racial or other 
invidious discrimination.

413 U.S. at 467. On remand, this Court suggested,
The District Court can appropriately direct the appellee [Text­
book Board members] to submit for approval a certification 
procedure under which any school seeking textbooks for its 
pupils may apply for participation on behalf of pupils. The 
certification by the school to the Mississippi Textbook Pur­
chasing Board should, among other factors, affirmatively de­
clare its admission, policies and practices, state the number of 
its racially and religiously identifiable minority students and 
such other relevant data as is consistent with this opinion. 
The State’s certification of eligibility would, of course, be sub­
ject to judicial review.

Id. at 471.
6 All of the schools initially participated in Mississippi’s pro­

gram to make available free textbooks to private school students. 
After this Court’s ruling that pupils at racially discriminatory 
institutions could not be given books consistent with the Four­
teenth Amendment, see swpra note 4, the district court established 
a certification procedure to be administered by the state Textbook 
Purchasing Board and articulated standards for determining 
whether a private academy was being operated on a nondiscrimina- 
tory basis. Three of the six schools immediately returned the text­
books they had received and withdrew from the program. Two 
others were initially approved by the Board but after the Norwood



4

certifications by the Mississippi Textbook Purchasing 
Board, the Norwood trial judge pointedly noted that one 
school which he found to be racially discriminatory still 
retained its federal tax-exempt status after the 1971 rul­
ing in this case1 * * * *— and the school sought to defend its en­
titlement to textbooks on this ground. See 382 F. Supp. 
at 929 (supposed non-discrimination policy “ obviously 
stated perfunctorily, at isolated intervals, and only to ob­
tain tax advantages” ). Even after the Norwood court’s 
ruling, however, this school continued to enjoy the bene­
fits of federal tax exemption, as did academies which re­
turned their books rather than attempt to meet the Nor­
wood requirements for showing nondiscrimination.6

Plaintiffs’ evidence in this case also established that 
the IRS had made no effort to determine whether the 
numerous Mississippi private schools claiming exemption 
by virtue of their affiliation with churches which did not 
have to apply formally for tax-exempt status7 were non­

plaintiffs filed objections in. the district court, also- gave back their
books and left the program. The sixth school was held to- be- dis­
criminatory by the district court after an evidentiary hearing and
was ordered to turn in its books- See Stay Opposition, Exhibit
“ 1” to Appendix “A” ; 382 F, Supp. at 928-29, 935.

6 See 382 F. Supp. at 935 n.19 and accompanying text; Stay 
Opposition, Exhibits “ 1,” “3” to- Appendix “A.”

7 See Stay Opposition at 4 n.5. For example, the school operated 
by petitioner was not included on a 1977 IRS list of tax-exempt 
Mississippi private educational institutions, see Memorandum of 
Points and Authorities in Support of Plaintiffs’ Motion for Sum­
mary Judgment, Green v. Miller, Civ. No. 1355-69 (D.D.C. January 
7, 1980), Attachment “D” (filed under seal). Nor was the Pres­
byterian Day School, which received only conditional approval from 
the court in Norwood, see 382 F. Supp. at 934 ( “the Presbyterian 
Day School, as an entity of the church, enjoys tax exempt status, 
and apparently has had no involvement with the orders in Green 
v. Connally . . .” ) and later withdrew from the program, see id., 
410 F. Supp. 133, 138 n.3 (N.D. Miss. 1976), aff’d and remanded, 
581 F.2d 518 (5th Cir. 1976).



5
discriminatory.8 In 1980, the district court concluded 
“ that the defendants have not violated the order o f June 
30, 1971, but that said order requires supplementation 
and modification,”  Pet. App. A-2 - A-3, and it granted 
the additional relief which is now at issue.

Petitioner then intervened in the case and moved to 
modify the 1980 order so as to exempt all church-operated 
schools from its application. On July 22, 1983, following 
the submission of affidavits and presentation of evidence 
through depositions, the trial court denied the Church’s 
motion to modify the injunction, finding “ [u]pon the 
basis of all of the evidence”  that

intervenor [Clarksdale Baptist Church] has failed 
to establish that application by the Internal Reve­
nue Service of the procedures and standards con­
tained in the Court’s injunctive decree of May 5, 
1980 (as amended June 2, 1980) to the Clarksdale 
Baptist Church or to church-connected schools in 
Mississippi, generally, violates any statutory or con­
stitutional right of the intervenor.9

Petitioner’s appeal to the D.C. Circuit was dismissed after 
oral argument before a panel, which held “ the First 
Amendment issues presented by the Intervenor to be 
plainly insubstantial”  (Pet. App. A -l, A-15).

8 See Deposition of James L. Bloom, Attachment “ D” to Plain­
tiffs’ Submission in Response to the Court’s March 9 Order, Green 
v. Miller, Civ. No, 1355-69 (D.D.C. October 12, 1979) 23 (filed 
under seal). IRS argued that it was required by the letter of the 
1971 decree only to deny applications for exemption or to withdraw 
favorable rulings which had been issued upon prior applications. 
Memorandum of Defendants in Response to Plaintiffs’ Submission 
on the Merits, Green v. Miller (November 27, 1979) 17.

9 Accordingly, the question of whether the district court appro­
priately granted summary judgment against petitioner, see Pet. at 
3 n.l, is not in the case. The district court “ further, and alterna­
tively, rule[d] directly upon intervenor’s Motion to Modify Injunc­
tion, since intervenor contends that summary judgment is inappro­
priate,” The 1983 district court order affirmed by the court below 
was omitted from the Petition but is reprinted infra, Appendix “A.”



6
Statement of Facts

The 1980 district court decree requires the IRS to 
deny or to withdraw the tax-exempt status of any Mis­
sissippi private school which either

(a) was held, in prior adversary or administrative 
proceedings, to1 be racially discriminatory, or
(b) was founded or expanded at the time of public 
school desegregation in the area it serves and cannot 
demonstrate “ that [it does] not racially discriminate 
in admissions, employment, scholarships, loan pro­
grams, athletics, and extra-curricular programs.”

See Pet. App. at A-3, A-8. The decree instructs IRS that 
the existence of either of these conditions creates an in­
ference of discrimination which a school seeking exemp­
tion “ may overcome by [furnishing] evidence which 
clearly and convincingly reveals objective acts and dec­
larations establishing that”  it follows nondiscriminatory 
policies.10 It further provides examples of the sort of in­
formation which might be presented to IRS by a private 
school to dispel the inference of discrimination,11 while 
explicitly directing IRS to consider “ any other similar 
evidence calculated to show that the doors of the private 
school and all facilities and programs therein are indeed 
open to students or teachers of both the black and white 
races upon the same standard of admission or employ­
ment.”  Pet. App. at A-4. In essence, the decree requires 
Mississippi private schools seeking federal tax exemption 
to do no more than they were already required to do 
under Norwood in order to obtain free textbooks for their 
pupils.

Finally, the decree requires IRS to collect, from Mis­
sissippi private schools, information adequate to permit

10 Pet. App. at A-3. Thei language used in the decree was taken 
from the opinion of the district court in Norwood, 382 F. Supp. 921 
(N.D. Miss. 1974).

11 These examples were also- taken from the Norwood opinion, 
supra note 10.



it to decide whether a school is subject to the inference 
of discrimination.12

Petitioner operates a private school which opened in 
the fall of 1964— immediately after the summer extraor­
dinary session of the Mississippi Legislature which en­
acted unconstitutional tuition grant legislation to impede 
public school desegregation.13 Integration of the Clarks- 
dale public schools under a “ freedom of choice”  plan ap­
plicable to grades 1 and 2 began in 1964-65; Clarksdale 
Baptist School opened to serve the same grades that 
year. As “ freedom of choice”  was extended to additional 
grades in the public schools, so the Clarksdale Baptist 
School added one grade each year from 1965-66 to 1968- 
69. When desegregation accelerated in 1969 and 1970,14 15 
enrollment in the Clarksdale Baptist School substantially 
increased and the school added grades 7 and 8 in the 
middle of a school year to accommodate white students 
who had previously attended public schools. Clarksdale 
Baptist also tripled the size of its teaching staff in 1969 
and 1970 by hiring a substantial number of white teach­
ers from the public school system.16

The Clarksdale Baptist School participated in the Mis­
sissippi textbook program until after Norwood v. Harri­
son was filed, when it withdrew. The school has never

12 The decree required IRS to conduct a survey of all Mississippi 
private schools, including- church schools, to determine which are 
subject to the inference of discrimination. See Stay Opposition 
at 4 n.5.

13 See Coffey v. State Educational Finance Commission, 296 
F. Supp. 1389, 1391 (S.D. Miss. 1969) (3-judge court).

14 See Alexander v. Holmes County Board of Education, 396 U.S. 
19 (1969) ; Henry v. Clarksdale Municipal Separate School District, 
433 F.2d 387 (5th Cir. 1970); id., 409 F.2d 682 (5th Cir.), cert, 
denied, 396 U.S. 940 (1969).

15 The facts summarized in this and the following paragraphs are
unoontested. See Stay Opposition, Appendix “D.”



8

enrolled a black student nor employed a black staff mem­
ber. Accordingly, after the 1980 decree in this case was 
issued, IRS notified the school that it was subject to the 
inference of discrimination and should furnish evidence 
that it operated on a nondiscriminatory basis.16 Peti­
tioner then intervened in this case. IRS has not yet made 
any determination whether the school is entitled to retain 
its exemption.

REASONS WHY THE WRIT SHOULD BE DENIED

As the court below correctly held, petitioner presents 
no substantial or important First Amendment questions; 
rather, petitioner’s arguments are based upon theories 
which are demonstrably incorrect according to settled 
law.

It is now clear that federal law—-consistently with the 
First Amendment— denies tax-exempt status to religious 
private schools which practice racial discrimination. 
Bob Jones University v. United States, 461 U.S. —— , 76 
L. Ed. 2d 157 (1983). It is therefore obvious that IRS 
must investigate the policies and practices of religious 
private schools to determine whether or not they are dis­
criminatory; a religious school’s simply claiming non­
discrimination is not controlling. See Bob Jones, 76 L. 
Ed. 2d at 182 (school claimed it was not discriminatory 
because it only prohibited interracial dating or marriage 
by students). Petitioner’ s argument that IRS may not 
constitutionally require church schools seeking exemption 
to provide information 17 about their founding and opera­

16 The IRS communications to petitioner’s school are reproduced 
as Appendix “B” to- the Stay Opposition.

17 Petitioner invokes the spectre of “widespread surveillance of 
religious institutions” based upon the district: court’s decree, which 
it says “create[s] excessive entanglement between government and 
a church in violation of the Establishment Clause,” Pet. at 8, 12. 
But, as this Court recognized in Walz v. Tax Commission, 397 U.S. 
664, 674 (1970), “ [ejither course, taxation of churches or exemp-



9

tion thus raises no serious issues worthy of this Court’s 
plenary consideration.* 18

Petitioner’s contention that the decree mandates that it 
engage in specific acts contrary to its beliefs is also un­
tenable. All that the decree requires is that the school do 
more than remain silent in the face of circumstantial 
evidence giving rise to an inference that it was founded 
or expanded for racially discriminatory reasons and con­
tinues to function on that basis. The decree provides ex­
amples, drawn from Norwood, of evidence which would 
tend to indicate that a school follows a nondiscrimina- 
tory policy. However, under the decree that determina­

tion, occasions some degree of involvement with religion.” The 
district court’s order in this case is fully consistent with the 
First Amendment because it avoids “ excessive entanglement.” The 
information sought by the IRS pursuant to the 1980 decree con­
sists of statistical data and objective facts about a private school’s 
historical development. See Stay Opposition, Appendix “B.”  The 
information requests are focused narrowly upon the admissions 
and employment; policies of Mississippi private schools and are 
directly and cogently relevant to determining whether nondiserim- 
inatory policies are in effect. Bob Jones University v. United
States, 639 F.2d 147, 155 (4th Cir. 1980), aff’d, 461 U.S. ------ , 76
L. Ed. 2d 157 (1983); Goldsboro Christian Schools, Inc. v. United 
States, 436 F. Supp. 1314, 1320 (E.D.N.C. 1977), aff’d mem., 464 
F.2d 879 (4th Cir. 1981), aff’d sub nom. Bob Jones University v. 
United States; cf. EEOC v. Mississippi College, 626 F.2d 477, 486- 
88 (5th Cir. 1980), cert, denied, 453 U.S. 1272 (1981). IRS makes 
no inquiry about, religious beliefs,, and it does not seek to trace 
the use of any funds. Compare Meek v. Pittenger, 421 U.S. 349 
(1978); McCormick v. Hirsch, 460 F. Supp. 1337, 1357 (M.D. Pa. 
1978).

18 Petitioner’ s, reliance upon NLRB v. Catholic Bishop of Chicago, 
440 U.S. 490 (1979), is entirely misplaced. Petitioner is subject, to 
IRS scrutiny only because it desires to be recognized as exempt 
from federal taxation, not because the government has sought, to 
regulate it. The First Amendment permits, but does not require, 
tax exemption for churches, see Walz, and Congress has properly 
conditioned the grant, of such exemption upon a showing of non­
discrimination. Bob Jones University v. United States.



10

tion is explicitly one for IKS to make, and the Service is 
directed explicitly to consider “ any other similar evidence 
calculated to show that the doors of the private school 
and all facilities and programs therein are indeed open 
to students or teachers of both the black and white races 
upon the same standard of admission or employment.” 
Pet. App. at A-4. Indeed, the examples in the decree are 
prefaced by the phrase, “ Such evidence might include, 
but is not limited to, . . . ,”  Pet. App. at A-3. Wholly 
apart from its exaggerated interpretation of individual 
paragraphs within the decree,19 therefore, it is disingen­
uous for petitioner to claim that it is being enjoined to 
take any specific actions contrary to its doctrinal beliefs 
in order to keep its tax-exempt status.

Petitioner also asserts that the inference of discrimi­
nation arising from an adjudication, or from the rela­
tionship between the founding or expansion of a private 
school and public school desegregation (where the private 
school cannot demonstrate its nondiscriminatory policy) 
is “ without rational basis or justification”  (Pet. at 11). 
This aspect of the district court’s decree, however, is 
based upon evidentiary principles developed over the 
years by federal courts, in order to determine whether 
private schools follow policies of nondiscrimination.20

is For instance, petitioner errs in equating the decree’s refer­
ences to recruitment, publication, and communications with black 
community representatives with “ evangelizing,” see Pet. at 9, 10. 
The school must hire staff and inform potential students of its 
existence and admisisions requirements in some manner. Requiring 
that it include information about; its commitment k> racial non­
discrimination and make efforts to ensure that this knowledge 
reaches possible sources of minority-race teachers or students 
simply does not amount to proselytizing for new adherents to peti­
tioner’s religious faith. See Norwood, 382 F. Supp. at 935; EEOC 
v. Mississippi College, 626 F.2d at 485 n.10.

20 See, e.g., United States v. Mississippi, 499 F.2d 425, 430 (5th 
Cir. 1974) (en banc) ; Brumfield v. Dodd, 425 F. Supp. 528, 531-32 
(E.D. La. 1976); Norwood, 382 F. Supp. at 924; Gilmore v. City 
of Montgomery, 337 F. Supp. 22, 24 n.2, 25 (M.D. Ala. 1972), aff’d



11

Such evidentiary rules are equally applicable to religious 
and non-religious institutions.21 22 Moreover, there is a 
manifest “ rational connection between the fact proved 
and the fact presumed” 2:2 under the district court’s de­
cree. The Mississippi private schools which refused to 
adopt policies of nondiscrimination after the three-judge 
court issued the preliminary injunction herein, Green v. 
Kennedy, 309 F. Supp. 1127 (D.D.C.), appeal dismissed 
sub nom. Cannon v. Green, 398 U.S. 956 (1970), and 
which consequently lost their entitlements to1 federal tax 
exemptions, were almost all founded “ in the wake of” 
public school desegregation.23 Thus, application of the re­
buttable inference of discrimination to church-connected 
schools founded or expanded in the wake of desegregation 
is entirely proper.24

in relevant part, 473 F.2d 832 (5th Cir. 1973), aff’d in relevant 
part, 417 U.S. 556 (1974) ; Green v. Connolly, 330' F. Supp. at 
1173.

21 See Jones v. Wolf, 443 U.S. 595, 607-09 (opinion of the Court), 
615-16 (dissenting opinion) (1979) (courts may apply rebuttable 
presumption that majority of congregation represents local church 
entity in dispute over right to church property); Synanen Founda­
tion, Inc. v. California, 444 U.S. 1307, 1307-08 (Rehnquist, J., Cir­
cuit Justice) (1979) (churches are not entitled to different treat­
ment from other charitable trusts in state courts); cf. United 
States v. Freedom Church, 613 F.2d 316, 322 (1st Cir. 1979) (dis­
trict court may infer existence of records and possession by min­
ister of church).

22 Leary v. United States, 395 U.S. 6, 33 (1969), quoting Tot v. 
United States, 319 U.S. 463, 467 (1943).

23 gee Coffey v. State Educational Finance Commission; Norwood 
v. Harrison.

24 Moreover, a number of federal courts have specifically found, 
after full hearings, that; church-connected schools to' which the in­
ference attached did in fact maintain discriminatory practices 
which disqualified them for governmental assistance. E.g., Brum­
field v. Dodd, 425 F. Supp. at; 534-35 (Grawood Christian School) ; 
Norwood v. Harrison, 382 F. Supp. at 927-28 (South Haven Men- 
nonite School) ; Gilmore v. City of Montgomery, 337 F. Supp. at



12

Finally, the standing issue raised by petitioner is not 
worthy of review for several reasons. First, this Court 
has only recently articulated the principles of standing 
applicable in this area in Allen v. Wright. In its opinion 
in that case, the Court specifically distinguished the in­
stant matter on the basis of the extensive record evidence 
demonstrating the link between federal tax-exempt sta­
tus, racially discriminatory private schools, and ineffec­
tive public school desegregation in Mississippi. 52 U.S. 
L.W. at 5118.24 25 The recognition of the plaintiffs’ stand­
ing in this suit therefore is not “ in conflict with appli­
cable decisions of this Court”  nor does it represent “ an 
important question of federal law which has not been, 
but should be, settled by this Court . . . U.S. Sup. Ct. 
Rule 17.1(c). Second, the lower courts in this case have 
not had an opportunity to consider what effect, if  any, 
the decision in Allen should have on this matter; but the 
Court of Appeals explicitly stated that “  [i] n the event 
that Wright [v. Allen] is modified or reversed by the 
Supreme Court, the Government may choose to return to 
the District Court for appropriate relief”  (Pet. App. at 
A - l ). Hence, no action by this Court at this time is nec­
essary. Third, there is a serious question whether peti­
tioner, as an intervenor, may appropriately raise the is­
sue at all. Plaintiffs’ standing to sue had been upheld 
prior to petitioner’s entry into this case, and an inter­
venor takes the case in the posture in which he finds it—

24 (St. James School); see also, Norwood, 382 F. Supp. at 928 
(County Day School, held ineligible for textbooks, started in facili­
ties provided rent-free by Presbyterian Church). This buttresses 
the rationality of applying the inference to church schools. See, 
e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 20-31 (1976).

25 The Court found it unnecessary to “consider whether standing 
was properly found to exist in Coit \_v. Green, 404 U.S. 997 (1971), 
ajf’g mem. Green v. Connally, 3301 F. Supp. 1150 (D.D.C. 1971)]” 
because the distinctions between Allen and this case suggest that 
the results in the two cases are not necessarily or irreconcilably in 
conflict. 52 U.S.L.W. at 5118,



13

and may not reopen issues already determined. Knowles 
v. Board of Public Instruction of Leon County, 405 F.2d 
1206, 1207 (5th Cir. 1969) ; United States v. School Dis­
trict of Omaha, 367 F. Supp. 198, 201 (D. Neb. 1973); 
Moore v. Tangipahoa Parish School Board, 298 F. Supp. 
288, 293 (E.D. La. 1969) ;  Stell v. Savannah-Chatham 
County Board of Education, 255 F. Supp. 88, 92 (S.D. 
Ga. 1966); see United States v. California Cooperative 
Canneries, 279 U.S. 553, 556 (1929) (Brandeis, J.) (re­
ferring to “ settled rule of practice that intervention will 
not be allowed for the purpose of impeaching a decree 
already made” ).

CONCLUSION

For the foregoing reasons, the petition should be 
denied.

Respectfully submitted,

Robert H. Kapp 
Joseph M. Hassett 
Sara-A nn Determan 
David S. Tatel 
Walter A. Smith , Jr.
Patricia A. Brannan 

Hogan & Hartson 
815 Connecticut Avenue, N.W. 
Washington, D.C. 20006 
(202) 381-4500

W illiam L. Robinson 
Norman J. Chachkin * 
Frank R. Parker 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212 

Attorneys for Respondents 
William H. Green, et al.

* Counsel of Record



APPENDIX



la

APPENDIX

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 1355-69

W illiam H. Green, et al,
Plaintiffs,

v.

Donald T. Regan, et al,
Defendants.

ORDER

[Filed Jul. 22, 1983]

All proceedings in this matter were stayed pursuant to 
the prior Order of January 6, 1982, awaiting the Su­
preme Court’s decision in Bob Jones University v. United 
States and Goldsboro Christian Schools, Inc. v. United 
States, 51 U.S.L.W. 4593 (U.S. May 24, 1983). That 
stay of proceedings was vacated on June 15, 1983 and on 
July 8, 1983, the Court heard arguments of counsel for 
the parties upon (a) defendant-intervenor Clarksdale 
Baptist Church’s Motion to Modify Injunction, and (b) 
plaintiffs’ Motion for Summary Judgment with respect to 
the Church’s claims. (These substantive motions were 
pending in this matter when the stay of proceedings was 
entered.)

Upon consideration of the arguments of counsel, the 
pleadings and evidence tendered in this cause, and after 
review of the entire record herein, it is ORDERED that 
plaintiffs’ Motion for Summary Judgment in their favor



2a

with respect to the constitutional and statutory claims 
raised by intervenor’s Motion to Modify Injunction is 
hereby GRANTED.

The Court further, and alternatively, rules directly 
upon intervenor’s Motion to Modify Injunction, since in- 
tervenor contends that summary judgment is inappro­
priate. Upon the basis of all of the evidence (including 
specifically the deposition testimony of the witnesses for 
the intervenor), the Court finds that intervenor has 
failed to establish that application by the Internal Reve­
nue Service of the procedures and standards contained 
in the Court’s injunctive decree of May 5, 1980 (as 
amended June 2, 1980) to the Clarksdale Baptist Church 
or to church-connected schools in Mississippi, generally, 
violates any statutory or constitutional right of the in­
tervenor. Accordingly, it is further ORDERED that the 
Motion to Modify Injunction filed by the Clarksdale Bap­
tist Church is DENIED.

On July 13, 1981 the Court suspended application of 
its 1980 decrees as to church-connected schools in Missis­
sippi, pending disposition of the claims raised by inter­
venor Clarksdale Baptist Church. The Court now having 
ruled upon those claims, it is further ORDERED that 
the previous Order of July 13, 1981 is VACATED, and 
defendants shall apply the May 5, 1980 and June 2, 1980 
decrees of this Court to church-connected private schools 
in Mississippi.

Because application of the Court’s prior rulings to 
church-connected schools was suspended for two years, it 
is further ORDERED that defendants shall file two addi­
tional annual reports with the Court (and serve copies 
thereof upon counsel for the parties), containing the in­
formation required by paragraph (10) of the Court’s 
Order of May 5, 1980, said reports to be filed on July 1, 
1984 and July 1, 1985.

It is further ORDERED that the effectiveness of this 
Order shall be stayed for a period of twenty (20) days



3a

from the date of entry hereof, so that defendants or de- 
fendant-intervenor may have an opportunity to seek a 
further stay of this Court’s rulings from the United 
States Court of Appeals for the District of Columbia 
Circuit, in connection with any appeal they may desire 
to prosecute.

Dated: July 22, 1983

/ s /  George L. Hart, Jr.
George L. Hart, Jr.
United States District Judge