Goldsboro Christian Schools, Inc. v. United States Brief Amicus Curiae

    Nos. 81-1 and 81-3 Mr

I n  T h e

^ u jrrm ?  Gkrurt trf %  M n tM  J^tate
October Term, 1981

Goldsboro Ch r ist ia n  S chools, I n c .,
y Petitioner,

U n it e d  S tates  of A m erica .

B ob J o n es  U n iv er sity ,
Petitioner.

U n it e d  S tates  of A m erica .

On Petitions for Writs of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AS AMICUS CURIAE 

IN SUPPORT OF THE UNITED STATES

Richard C. Dinkelspiel 
Maximilian W. Kempner

Co-Chairmen
William L. Robinson 
Norman J. Chachkin  * 
Frank R. Parker 

Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
733 15th Street, N.W.,

Suite 520
Washington, D.C. 20005 
(202) 628-6700 

* Counsel of Record

Robert H. Kapp 
Sara-Ann  Determan 
Walter A. Smith , J r.
J oseph M. Hassett 
David S. Tatel 
Nancy G. Yates 
Sylvia Schwarz 

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

Attorneys for Amicus Curiae

W i l s o n  - E p e s  P r 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



Table of Authorities ........ ..................... ..........................  ii
Interest of Amicus Curiae...........................- .................  1
Summary of Argument------- -------------------------------  3
Argument .......................... ....................... - ............... .......  5

I. The Federal Government Is Constitutionally Pro­
hibited from Granting Tax Benefits to Racially 
Discriminatory Private Schools - ---- -------- ---  5

II. The Government’s Decision Not to Support
Racially Discriminatory Private Schools Does 
Not Violate Petitioners’ First Amendment 
R ights............-............ ............ .................... -.........  18
A. The Burden on Petitioners’ Free Exercise

Rights Is Not Significant ....................... ...... 20
B. The Governmental Interests at Stake Are

Compelling and Constitutionally Based......  23
C. The Government’s Interests are Sufficiently 

Compelling to Outweigh the Minimal Burden
on Petitioners’ Free Exercise R ights--------  26

Conclusion....................      30

TABLE OF CONTENTS
Page



11

TABLE OF AUTHORITIES
Cases: Page

Alexander v. Holmes County Bd. of Educ., 396
U.S. 19 (1969) ............. .................... ....... ............ 2

Board of Educ. v. Allen, 392 U.S. 236 (1968) .....  15n
Bob Jones Univ. v. Johnson, 396 F. Supp. 597 

(D.S.C. 1974), aff’d mem. 529 F.2d 514 (4th 
Cir. 1975)__________ __________ __ ______ _ 29, 30

Bob Jones Univ. v. Simon, 416 U.S. 725 (1974).... 5n, 10,
11

Bob Jones Univ. v. United States, 639 F.2d 147 
(4th Cir. 1980), cert, granted, 50 U.S.L.W.
3278 (U.S,, Oct. 13, 1981) _________________  18n

Bolling v. Sharpe, 347 U.S, 497 (1954) ............... 7
Braunfeld v. Brown, 366 U.S. 599 (1961)......21, 22, 27n
Brown v. Board of Educ., 347 U.S. 483 (1954).... 7, 8,

23, 25
Brown v. Califano, 627 F.2d 1221 (D.C. Cir.

1980)______         18n
Brown v. Dade Christian Schools, Inc., 556 F.2d 

310 (5th Cir. 1977) (en banc), cert, denied,
434 U.S. 1063 (1978) ___________ ___ ____ 22n, 28n

Brumfield v. Dodd, 405 F. Supp. 388 (E.D. La.
1975) ____        24n

Coffey v. State Educ. Fin. Comm’n, 296 F. Supp.
1387 (S.D. Miss, 1969) ........ ................ ..............  11,13

Coit v. Green, 404 U.S, 997 (1971) .......... ........ 4n, 5n, 6n
Committee for Public Educ. v. Nyquist, 413 U.S.

756 (1973) ...................................   ..4,16,17
Faubus v. Aaron, 361 U.S. 197 (1959), aff’g 

Aaron v. McKinley, 173 F. Supp. 944 (E.D. Ark.
1959) ........... ........... ......................... .......... ......... - 8n

Fiedler v. Marumsco Christian Schools, 631 F.2d
1144 (4th Cir. 1980) ......... ......... ...... ..................  26n

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).. lOn,
18n

Flood v. Kuhn, 407 U.S. 258 (1971) .......... ....... . 6n
Fusari v. Steinberg, 419 U.S. 379 (1975) ...... 6n
Gilmore v. City of Montgomery, 417 U.S. 556

(1974) ...................................... ........... ..... ..17n, 18n, 24n



Page

iii

TABLE OF AUTHORITIES— Continued

Green v. Connally, 330 F. Supp. 1150 (D.D.C.), 
aff’d sub nom. Coit v. Green, 404 U.S. 997
(1971) ........... ..................... ....... 3, 4, 5, 6n, 7n, 9, 24n, 25

Green v. Kennedy, 309 F. Supp. 1127 (D.D.C.), 
appeal dismissed sub nom. Cannon v. Green, 398
U.S. 956 (1970) ......................... ........ ..... .......... 2, 11, 12

Green v. Kennedy, Civ. No. 1355-69 (D.D.C.) .....  5n
Green v. Regan, Civ. No. 1355-69 (D.D.C.)............  3
Griffin v. County School Bd. of Prince Edward

County, 377 U.S. 218 (1964) .......................... ...8n, 24n
Grove City College v. Harris, 500 F. Supp. 253

(W.D. Pa. 1980) ____ ____ ________ _____ _ 18n
Hall v. St. Helena Parish School Bd., 197 F. Supp.

649 (E.D. La. 1961), aff’d 368 U.S. 515 (1962).. 24n
Harris v. McRae, 448 U.S. 297 (1980) .... ............ ..19, 20n
Hicks v. Miranda, 442 U.S. 332 (1975) ____ ___  6n
Iron Arrow Honor Soc. v. Hufstedler, 499 F. Supp.

496 (S.D. Fla. 1980), aff’d 652 F.2d 445 (5th 
Cir. 1981), pet. for cert, filed, 50 U.S.L.W. 3377
(Oct. 31, 1981) ....... ........... .......... ........ .............  18n

Johnson v. Robison, 415 U.S, 361 (1974) ______  22n
Lee v. Macon County Bd. of Educ., 267 F. Supp.

458 (M.D. Ala,), aff’d sub nom. Wallace v.
United States, 389 U.S. 215 (1967) ......... .........  9

Lemon v. Kurtzman, 403 U.S. 602 (1971) ...........  16
Louisiana Fin. Assistance Comm’n v. Poindexter,

389 U.S. 571 (1968), aff’g 275 F. Supp. 833
(E.D. La. 1967) ..... ......... ............ ............. .........  8n

Loving v. Virginia, 388 U.S. 1 (1967) ......... ...... 13n, 14n
Maher v. Roe, 432 U.S. 464 (1977) ........   17n-18n
Mandel v. Bradley, 432 U.S. 173 (1976) ............... 6n
McDaniel v. Paty, 435 U.S. 618 (1978)......   26
McGlotten v. Connally, 338 F. Supp. 448 (D.D.C.

1972) ........ ....................... ......... ....... ..... 6n, 7n, 12n, 25n
McKeesport Area School Dist. v. Pennsylvania

Dept, of Educ., 446 U.S. 970 (1980) ..................  6n
McLaughlin v. Florida, 379 U.S. 184 (1964) ....... 13n



Newman v. Piggie Park Enterprises, Inc., 256 
F. Supp. 941 (D.S.C. 1966), rev’d in part, 377 
F.2d 433 (4th Cir. 1967), modified and aff’d per

TABLE OF AUTHORITIES— Continued
Page

curiam, 390 U.S. 400 (1968) ............ ............... . 29n
Norwood v. Harrison, 413 U.S. 455 (1973) ____ passim
O’Hair v. Paine, 312 F. Supp. 434 (W.D. Tex.

1969), appeal dismissed, 397 U.S. 531 (1970), 
aff’d 432 F.2d 66 (5th Cir. 1970), cert, denied,
401 U.S. 955 (1971) _________ __ ________

Orleans Parish School Bd. v. Bush, 365 U.S. 569 
(1961), aff’g 187 F. Supp. 42, 188 F. Supp. 916
(E.D. La. 1960) _____________ ______ ______

Pennsylvania v. Board of Directors of City Trusts,
353 U.S. 230 (1957) ____ ______ ___ _______

Poindexter v. Louisiana Fin. Assistance Comm’n,
275 F. Supp. 833 (E.D. La. 1967), aff’d 389 U.S.
571 (1968) ______ _____ _______ __________

Prince v. Massachusetts, 321 U.S. 158 (1944).... 
Radovich v. National Football League, 352 U.S.

445 (1957) _______________ _________ ___ _
Reynolds v. United States, 98 U.S. 145 (1878).— 
Runyon v. McCrary, 427 U.S. 160 (1976)._6n, 8n, 17n, 25 
St. Helena Parish School Bd. v. Hall, 368 U.S.

515 (1962), aff’g 197 F. Supp. 649 (E.D. La.
1961) ....... ........... ................... ............... ......... .....  8n

Sherbert v. Verner, 374 U.S. 398 (1963) ........20n, 27, 28
Smith and United States v. North Carolina State 

Bd. of Educ., Civ. No. 2572 (E.D.N.C., May 18,
1971) ____________ - __ ______________________  lOn

South Carolina State Bd. of Educ. v. Brown, 393 
U.S. 222 (1968), aff’g 296 F. Supp. 199 (D.S.C.
1968) __ _______ ___ _____ _________ ___ __ _ 8n

Strauder v. West Virginia, 100 U.S. 303 (1880).. 8n 
Thomas v. Review Bd., 101 S. Ct. 1425 (1981).... 27,28 
United States v. Jefferson County Bd. of Educ.,

372 F.2d 836 (1966), aff’d en banc, 380 F.2d 
385 (5th Cir.), cert, denied sub nom. Caddo 
Parish School Bd. v. United States, 389 U.S. 840 
(1967) ________ __ - ................. ................... . 24n

19n

8n

8n

24n
29n

6n
29n



V

TABLE OF AU THO RITIES—Continued
Page

Wallace v. United States, 389 U.S. 215 (1967), 
aff’g Lee v. Macon County Bd. of Educ., 267
F. Supp. 458 (M.D. Ala. 1967) ____ _______ 8n

Walz v. Tax Comm’n, 397 U.S. 644 (1970) .14, 15, 16, 19 
West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943)............. .......... ................ . 28
Whittenberg v. Greenville County School Dist., 

decided sub nom. Stanley v. Darlington County
School Dist., 424 F.2d 195 (4th Cir. 1970) ___  lOn

Widmar v. Vincent, 50 U.S.L.W. 4062 (U.S., Dec.
8, 1981) ____ _________ ______ ________ _____  27

Wisconsin v. Yoder, 406 U.S. 205 (1972) ........ 20, 21, 22,
27, 28

Statutes:
26 U.S.C. § 170 ............... .................................. In, 10, 12n
26 U.S.C. § 501 (c) (3) ..... .......... ........... ....... In. 10, 27-28
26 U.S.C. § 501 (i) _______ ______ _______ __ _ On
42 U.S.C. § 1981 ...................... .......................... 8n. 25, 26n
42 U.S.C. §§ 2000c-2000d-4 ...... .... ....... .......... ......  25
42 U.S.C. § 2000d ______________ ____ _______ 25n, 29n
P.L. No. 96-74, 93 Stat. 559 (1979) ___________  7n

L egisla tive M aterials:
S. Rep . No. 1318, 94th Cong., 2d Sess. (1976), 

reprin ted  in  [1976] U.S. Code Cong. & Adm .
N ews ............ ............. ................................ ...... ....... .......  6n, 7n

125 Cong. Rec. (1979) ....... ......... ............ .......... . 7n
Part 3D: Desegregation Under Law, Hearings 

Before the Select Committee on Equal Educa­
tional Opportunity of the United States Senate,
91st Cong., 2d Sess. (1970) ...... .............. ......... . 24n

Tax-Exempt Status of Private Schools: Hearings 
Before the Subcommittee on Oversight of the 
House Committee on Ways and Means, 96th 
Cong., 1st Sess. (1979) __________ ____ 7n, 12n, 13n

Regulations and A dm in istra tive M aterials:
Rev. Proc. 71-447, 1971-2 C.B. 230 .................. . 2n
44 Fed. Reg. 9451 (February 13, 1979) ........... ...... 7n
43 Fed. Reg. 37296 (August 22, 1978) ____ __ _ 7n
41 Fed. Reg. 35553 (August 23, 1976)  ...... ......  25n



Internal Revenue Service News Release, July 10,
1970, 7 Stand Fed. Tax Rep . (CCH) 6790 
(1970)............................................... ..... ........ ......  2n

Other A uthorities:
D. Bell, Race, Racism and  A merican Law

(1973) ......... ...............  *....... ........................ . 2 In
Bittker & Kaufman, Taxes and Civil Rights: “Con­

stitutionalizing” the Internal Revenue Code, 82
Yale L.J. 51 (1972) ...........................................  25n

Brown, Academies: Many Parents Would Give 
Children Bad Educations, South Today, Dec.,
1970 _______ ___ ______ __ ____ _______ ___ _ 24n

Brown, State Action Analysis of Tax Expenditures,
11 Harv. C.R.-C.L. L. Rev. 97 (1976) ........ . 17n

Brown & Provizer, The South’s New Dual School
System.: A Case Study, New South, Fall, 1972.. 24n

Comment, Tax Incentives as State Action, 122 U.
Pa . L. Rev. 414 (1973) ___________________  17n

Commentary, Civil Rights—42 U.S.C. 1981: Keep­
ing a Compromised Promise of Equality to
Blacks, 29 U. F la . L. Rev. 318 (1977) ....... . 24n

Feldstein, The Income Tax and Charitable Contri­
butions: Part I—Aggregate and Distributional
Effects, 28 Nat’l Tax J. 81 (1975) .................. lOn-lln

Instant Schools, N ew sw eek , Jan. 26, 1970 ........... 24n
Miles, Private Schools: Enrollment Almost Trip­

les in Tarheel State, South Today, Dec., 1971.. 24n
N at’l Center for Educ. Statistics, U.S. Dept, 

of E duc., P rivate Schools in  A merican E du­
cation (1981) _____ ____ ___ ____ ________  28n

D. N evin  & R. Bills, the  Schools T hat F ear 
B uilt— Segregationist A cademies in  the
South (1976) _____ ____ __________ ___ ___  24n

Note, Section 1981 after Runyon v. McCrary: The 
Free Exercise Right of Private Sectarian Schools 
to Deny Admission to Blacks on Account of Race,
1977 Duke L.J. 1219 ____ ______ ____ ___ ..._26n, 28n

Note, Segregation Academies and State Action, 82 
Yale L.J. 1436 (1973)

vi

TABLE OF AUTHORITIES— Continued
Page

24n



vu

TABLE OF AU THO RITIES—Continued
Page

Note, The IRS, Discrimination, and Religious 
Schools: Does the Revised Proposed Revenue 
Procedure Exact Too High a Price?, 56 N otre
Dame Law . 141 (1980) .............. .... ................ —. 28n

Note, The Judicial Role in Attacking Racial Dis­
crimination in Tax-Exempt Private Schools, 98
Harv. L. Rev. 378 (1979) ..............  lln

J. P erlman, F ederal Tax P olicy (3d ed. 1977)- lOn 
Rice, Conscientious Objection to Public Education:

The Grievance and the Remedies, 1978 B.Y.U.
L. Rev. 847 .......... ....... ............ ......................... . 28n

Southern Regional Council, T he South and  
Her Ch ild ren : School Desegregation 1970-
71 (1971) __ ______ ________ ___ ________  2 In

Spratt, Federal Tax Exemptions for Private Segre­
gated Schools, 12 W m . & Mary L. Rev. 1 (1970).. 12n

Surrey, Tax Incentives as a Device for Implement­
ing Government Policy: A Comparison with
Direct Government Expenditures, 83 Harv. L.
Rev. 705 (1970)_____ ______ ______ _______  17n

Tergen, Closeup on Segregation Academies, N ew
South, Fall, 1972 ....... ..... ..... ........... ................ . 24n

Tergen, Private Schools, Charleston Style, South
Today, Jan./Feb., 1971... ........ ..... 24n

U.S. Comm’n  on Civil R ights, School Desegre­
gation in  Ten  Communities (1973) _____ ___ 24n

U.S. Comm’n  on Civil Rights, Southern School 
Desegregation 1966-67 (1967) .........................  24n



In  The

dujjrmF Qlmtrt of %  li&mtvb
October T er m , 1981

Nos, 81-1 and 81-3

Goldsboro Ch r ist ia n  S chools, I n c .,
Petitioner,

U n ite d  S tates of A m erica .

B ob J o n es  U n iv er sity ,
Petitioner.

U n ite d  S tates of A m erica .

On Petitions for Writs of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AS AMICUS CURIAE 

IN SUPPORT OF THE UNITED STATES

INTEREST OF AMICUS CURIAE
The Lawyers’ Committee for Civil Rights Under Law 

was organized in 1963 at the request of the President 
of the United States to involve private attorneys through­
out the country in the national effort to assure civil 
rights to all Americans. The Committee has over the 
past eighteen years enlisted the services of thousands of 
members of the private bar in addressing the legal prob­
lems of minorities and the poor in voting, education, 
housing, municipal services, the administration of jus­
tice, and law enforcement. Since 1965 the Committee 
has maintained an office in Jackson, Mississippi with 
full-time staff attorneys to assist black citizens in that 
state.



2

The Lawyers’ Committee has long had a strong inter­
est in effective public school desegregation, particularly 
in Mississippi. For example, it filed a brief amicus curiae 
and its then Co-Chairman (now U.S. District Judge) 
Louis F. Oberdorfer presented oral argument in support 
of the petitioners in Alexander v. Holmes County Board 
of Education, 396 U.S. 19 (1969). Following the Court’s 
decision in that case, many new all-white, segregated 
private schools were established, and existing all-white 
schools expanded, in Mississippi. These schools provided 
white students and their parents with an opportunity to 
avoid public school desegregation and frustrated the 
efforts of federal courts and the U.S. Department of 
Health, Education, and Welfare to carry out this Court’s 
Alexander mandate. Nevertheless, the Internal Revenue 
Service considered these private schools’ racially discrim­
inatory policies irrelevant to their status as charitable in­
stitutions, and the Service recognized all of them, as 
exempt from federal taxation pursuant to 26 U.S.C. 
§ 501(c) (3), thus qualifying third-party gifts to the 
schools as tax-deductible charitable donations. Accord­
ingly, in 1969 the Committee’s Mississippi office filed 
suit against the Service on behalf of a class of Missis­
sippi black parents and schoolchildren. The Committee 
has continued to provide counsel to the plaintiffs in that 
case, in which proceedings are still pending in the U.S. 
District Court for the District of Columbia, sub nom. 
Green v. Regan, Civ. No. 1355-69.

After the plaintiffs obtained a preliminary injunction 
in that suit in 1970, Green v. Kennedy, 309 F. Supp. 
1127 (D.D.C.), appeal dismissed sub nom. Cannon v. 
Green, 398 U.S. 956 (1970), the Internal Revenue Serv­
ice announced that it could “no longer justify allowing 
tax-exempt status to private schools which practice racial 
discrimination nor can it treat gifts to such schools as 
charitable deductions for income tax purposes.” 1 The

1 Internal Revenue Service News Release, July 10, 1970, 7 Stand. 
Fed. Tax Rep. (CCH) 6790 (1970). The change of policy was 
then codified in Rev. Proc. 71-447, 1971-2 C.B. 230.



three-judge court nonetheless granted the plaintiffs’ re­
quest for injunctive relief to assure that the Service 
effectuated its new policy, which the court held was the 
only correct interpretation of the Internal Revenue Code. 
Green v. Connally, 330 F. Supp. 1150 (D.D.C.), aff’d sub 
nom. Coit v. Green, 404 U.S. 997 (1971). Subsequently, 
the district court has granted further injunctive relief 
to carry out the 1971 decree. Green v. Regan, Civ. No. 
1355-69 (D.D.C., May 5 and June 2, 1980).

In their petitions for certiorari and briefs, both Bob 
Jones University and Goldsboro Christian Schools, Inc. 
not only raise First Amendment claims with respect to 
the application of Green principles to religious institu­
tions, but they also seek a determination from this Court 
that Green itself was wrongly decided. Such a ruling 
would directly undercut the judgments which Lawyers’ 
Committee attorneys have secured in Green, and it would 
also seriously weaken anew the desegregation of Missis­
sippi’s public schools. Because amicus believes that there 
is no credible argument for an interpretation of the 
Code which would have this tragic result and, indeed, 
that the Green ruling is constitutionally compelled, we 
file this brief in support- of the United States.8

SUMMARY OF ARGUMENT

There are two important issues raised by these cases : 
whether the federal government can constitutionally con­
fer tax benefits on racially discriminatory private 
schools; and whether the First Amendment requires the 
federal government to confer those benefits on such 
schools if their discrimination is religiously based. The 
first issue was effectively resolved in Norwood v. Har- 2 *

2 The parties’ letters of consent are being lodged with the Clerk
pursuant to Rule 36.1.



4

rison, 413 U.S. 455 (1973), in which a unanimous. Court 
declared it unconstitutional for government to lend “tan­
gible financial aid” to private discriminatory schools. 
There is no doubt that the tax benefits at issue in these 
cases constitute such “aid,” both as a matter of fact and 
as a matter of law. See Committee for Public Educa­
tion v. Nyquist, 413 U.S. 756, 790-91 (1973) ; Green v. 
Connolly, supra.

The First Amendment issue requires a balancing of the 
public’s interest in precluding tax-benefit support to 
racially discriminatory schools against the right of those 
schools which discriminate racially on religious grounds 
not to be unduly penalized for conduct based upon reli­
gious belief. Since the government’s obligation to preclude 
the benefits is constitutionally compelled, and is, in addi­
tion, premised on a constitutionally rooted national policy 
against racial discrimination in education ; and since the 
burden on religious exercise in the present case is 
minimal, the public interest in precluding benefits must 
prevail.3 8

8 The first question which petitioners raise in these cases is 
whether sections 501(c)(3) and 170(a)-(c) of the Internal Reve­
nue Code are properly read to bar the granting of tax benefits 
to racially discriminatory private schools. As indicated above, 
this has been the Service’s: consistent construction of the Code since 
1970. It was upheld in 1971, Green v. Connally, supra, and has 
been followed by every federal court which has considered it since 
that time. We do not address the question separately in this brief 
but fully support the government’s arguments. Based upon amicus’ 
experience, however, we wish to direct the Court’s attention to two 
matters:

The first point we wish to make on the statutory construction 
issue concerns this Court’s ruling in Cbit v. Green, 404 U.S. 997 
(1971), which this Court has said “lacks the precedential weight 
of a case involving a truly adversary controversy’’ since the Service 
had “reversed its position while the case was on appeal to this



5

ARGUMENT
I. THE FEDERAL GOVERNMENT IS CONSTITU­

TIONALLY PROHIBITED FROM GRANTING TAX 
BENEFITS TO RACIALLY DISCRIMINATORY 
PRIVATE SCHOOLS.

While we believe the IRS, the Green court, and now, 
the Fourth Circuit- in the present cases, have all cor­
rectly construed Sections 501 and 170 to authorize the

Court.” Bob Jones University v. Simon, 416 U.S. 725, 740 n .l l  
(1974). Even though the case may not have been “truly adversary” 
in the sense that the Service did not, before this Court, oppose 
the Green plaintiffs' construction of the Code, nevertheless, as we 
will explain, the case was an “adversary” proceeding as to the 
statutory issue pressed by the present petitioners. Under well- 
settled principles, the Court’s affirmance of Green therefore is a 
holding on the merits of that issue not to be overturned lightly.

Following the issuance of the preliminary injunction, the Green 
three-judge district court permitted certain interveners to enter 
the case in January, 1970 as representatives of parents and children 
who attended or supported private: racially discriminatory schools 
in Mississippi. After the Service changed its position in July, 
1970, see note 1 supra and accompanying text, the only issues 
which the United States litigated in the lower court in Green were 
the appropriate procedures for effectuating the denial of tax bene­
fits to discriminatory schools and the necessity for any injunctive 
relief. See Defendants’ Memorandum in Opposition to Plaintiffs’ 
Proposed Injunctive Decree, Green v. Kennedy, Civ. No-. 1355-69 
(D.D.C., filed Jan. 25, 1971). The interveners, however, attacked 
the statutory interpretation proffered by the plaintiffs and the 
Service, and which was ultimately adopted by the three-judge 
court. The interveners were also the parties adversary to the 
plaintiffs and the United States before this Court in 1971. In their 
papers, they described the federal questions before this Court as 
whether the IRS could lawfully withdraw tax benefits from racially 
discriminatory private schools, and whether such withdrawal vio­
lated interveners’ First Amendment rights. Jurisdictional State­
ment, Coit v. Green, supra, at 13-16. In response, both the United 
States and the plaintiffs moved to dismiss the appeal, primarily 
on the ground that the intervenors lacked standing to raise these 
issues. However, the Green plaintiffs alternatively asked this Court



.6

withholding of tax benefits from racially discriminatory 
private schools, the real issue here, in our view, is not

to affirm the lower court’s judgment. Motion to Dismiss or Affirm, 
Coit v. Green, supra. The Court did, in fact, summarily affirm 
rather than dismiss the appeal. For this reason, amicus has always 
understood this Court’s affirmance in Green to have rejected inter­
veners’ two contentions on their merits, and to have confirmed 
the holding (if not necessarily the specific reasoning) of the lower 
court. Mandel v. Bradley, 432 U.S. 173, 176 (1976) ; Hicks v. 
Miranda, 422 U.S. 332, 344 (1975) ; Fusari v. Steinberg, 419 U.S. 
379, 391-92 (1975) (Burger, C.J., concurring). The fact that the 
Court treated its Green affirmance as both a decision on the merits 
and a holding of some importance was evident in the holding two 
years later in Norwood v. Harrison, 413 U.S. 455, 463 & n.6 (1973), 
discussed in Argument I infra.

We are not contending, of course, that the Court may not, upon 
reconsideration of the Green holding, now reverse its previous 
affirmance of that holding; nor do we suggest that there is not 
more jurisprudential leeway for such a reversal in the case of a 
prior summary affirmance. Bather, we mean only to- underscore 
that it is in fact a reversal that is being sought, and that peti­
tioners are now making essentially the same challenges to the same 
1970 IBS construction which intervenors made over ten years ago>. 
In such a situation, we submit that the Court should hesitate now 
to reach a different outcome, see McKeesport Area School Dist. v. 
Pennsylvania Dept, of Educ., 446 U.S. 970, 971-72 (1980) (White, 
J., concurring). This is especially so in light of Congress’ accept­
ance of the Green holding, see infra, and the long reliance by the 
Service, the courts, and the private schools themselves, on the 
previous affirmance. Cf. Bunyon v. McCrary, 427 U.S. 160, 190-92 
(1976) (Stevens, J., concurring) ; Flood v. Kuhn, 407 U.S. 258, 
273-76, 278-79, 283 (1971); Badovich v. National Football League, 
352 U.S. 445, 450-52 (1957).

Second, we believe that congressional action since the Service 
announced its construction of the Code in 1970 has confirmed and 
approved that construction. In 1976, the Congress enacted 26 U.S.C. 
§501(i) to deny tax-exempt status to discriminatory social clubs. 
As explained in the Senate Beport on the bill, its purpose was to 
overturn MeGlotten v. Connally, 338 F. Supp. 448 (D.D.C. 1972), 
which had held that discriminatory fraternal beneficiary societies 
were not entitled to such status, but that social clubs were. S. Bep. 
No. 1318, 94th Cong., 2d Sess. 8 n.5 (1976), reprinted in [1976] 
U.S. Code Cong. & Adm. News 6057. The “reason for change” in



one of statutory authorization ; it is one of constitutional 
command.

The constitutional prohibition of racial discrimination 
in education was first articulated by this Court in Brown 
v. Board of Education, 347 U.S. 483 (1954) and Bolling 
v. Sharpe, 347 U.S. 497 (1954) (companion case to 
Brown applying prohibition against state-supported school 
segregation to the federal government). In Brown the 
Court noted that education is “perhaps the most im-

the law was that “[i]n  view of national policy,” it was considered 
“inappropriate” for a discriminatory “social club or similar organi­
zation” to be accorded tax-exempt status. Id. at 6058. The Report 
expressly noted that McGlotten had denied tax-exempt status to 
racially discriminatory fraternal societies and that this Court had 
affirmed the Green decision denying tax benefits to racially dis­
criminatory educational institutions. Id. at 6058 n.5. We submit 
that this legislative history demonstrates (a) Congress’ commit­
ment to the national policy against racial discrimination; (b) that 
the policy must be taken into account in determining eligibility for 
tax benefits; (c) that Congress stands ready to amend section 501 
to overturn judicial decisions at odds with this national policy; and 
(d) that Congress was aware of, and approved, the decision in 
Green.

These conclusions are further supported by events in 1979, after 
the Service had published proposed procedures for identifying 
racially discriminatory private schools not entitled to tax-exempt 
status. 43 Fed. Reg. 37296 (August 22, 1978) ; 44 Fed. Reg. 9451 
(February 13, 1979). See Tax-Exempt Status of Private Schools: 
Hearings Before the Subcommittee on Oversight of the House 
Committee on Ways and Means, 96th Cong., 1st Sess. 5 (1979) 
(statement of Jerome Kurtz) [hereinafter cited as “1979 Hear­
ings”']. Although Congress adopted riders to Treasury Department 
appropriations acts to prevent the effectuation of the new pro­
cedures, see P.L. No. 96-74, §§ 103, 615, 93 Stat. 559, 562, 577, it 
did not suspend the Service’s authority under its existing pro­
cedures to withhold tax benefits from racially discriminatory private 
schools. The supporters of the appropriations riders strongly en­
dorsed the substance of the Service’s 1970 construction of the 
Code. See, e.g., 125 Cong. Reg. H5883 (daily ed., July 13, 1979) 
(remarks of Rep. Sensenbrenner); id. at H5884 (Rep. Hammer 
schmidt), H5885 (Rep, Dickinson), H5982 (daily ed., July 16, 
1979) (remarks of Reps. Doman, Goldwater, and Miller).

7



portant function of state and local governments” and, 
further, that government-sponsored separation of stu­
dents “from others of similar age and qualifications 
solely because of their race generates a feeling of in­
feriority as to their status in the community that may 
affect their minds and hearts in a way unlikely ever to 
be undone,” 347 U.S. at 493, 494. The Court also rec­
ognized that “ [t]he impact is greater when it has the 
sanction of the law; for the policy of separating the races 
is usually interpreted as denoting the inferiority of the 
negro group,” id . at 494 (quoting with approval the find­
ings of the district court in Brown) ,4 * Because the stigma 
and harm are the same whenever black children are ex­
cluded from educational opportunities on the basis of 
race with governmental sanction,® this Court promptly 
and consistently applied Brown to affirm lower court 
rulings which enjoined programs of state-furnished as­
sistance to “private” schools established to circumvent 
public school desegregation.6

4 See Strauder v. West Virginia, 100 U.S. 303, 308 (1880) : the
Fourteenth Amendment protects blacks from “unfriendly legis­
lation against them distinctively as colored; exemption from legal 
discriminations, implying inferiority in civil society . . . .”

6 In Runyon v. McCrary, supra, this Court sustained Congress’ 
authority, in enacting 42 U.S.C. § 1981 to enforce the Thirteenth 
Amendment, to bar racial discrimination by private schools whether 
or not the institutions were, the recipients of government largesse.

16 Faubus v. Aaron, 361 U.S. 197 (1959), aff’g Aaron v. McKinley, 
173 F. Supp, 944 (E.D. Ark. 1959) ; Orleans Parish School Bd. v. 
Bush, 365 U.S. 569 (1961) ; aff’g 187 F. Supp. 42, 188 F. Supp. 
916 (E.D. La. 1960); St. Helena Parish School Bd. v. Hall, 368 
U.S. 515 (1962), aff’g 197 F. Supp. 649 (E.D. La. 1961); Griffin 
v. County School Bd. of Prince Edward County, 377 U.S. 218 
(1964) ; Wallace v. United States, 389 U.S. 215 (1967) ; aff’g Lee 
v. Macon County Bd. of Educ., 267 F. Supp. 458 (M.D. Ala. 1967) ; 
Louisiana Fin. Assistance Cornm’n v. Poindexter, 389 U.S. 571 
(1968), aff’g 275 F. Supp. 833 (E.D. La. 1967); South Carolina 
State Bd. of Educ, v. Brown, 393 U.S. 222 (1968) ; aff’g 296 
F. Supp. 199 (D.S.C. 1968); cf. Pennsylvania v. Board of Directors 
of City Trusts, 353 U.S. 230 (1957).



9

These developments culminated in the decision in Nor­
wood, v. Harrison, supra, which makes clear that govern­
ment may not lend “tangible financial aid” to private, 
racially discriminatory schools, even under a facially neu­
tral program which benefits all private schools. There, 
the Court reviewed the constitutionality of a Mississippi 
statute which made free textbooks available to schoolchil­
dren in both public and private schools, without regard 
to whether the schools were racially discriminatory. On 
reasoning clearly applicable to the present cases, the 
Court declared the loaning of textbooks to racially dis­
criminatory schools to be unconstitutional.

“Racial discrimination in state-operated schools,” said 
the Court, “is barred by the Constitution and ‘[i]t is 
also axiomatic that a state may not induce, encourage, 
or promote private persons to accomplish what it is con­
stitutionally forbidden to accomplish.’ ” 413 U.S. at 465 
(quoting Lee v. Macon County Board of Education, 267 
F. Supp. 458, 475-76 (M.D. Ala.), aff’d sub nom. Wallace 
v. United States, 389 U.S. 215 (1967)). Hence, said the 
Court, government may not provide “tangible financial 
aid” to an educational institution “if that aid has a 
significant tendency to facilitate, reinforce, and support 
private discrimination.” Id, at 466.

The essential issue in Norwood, then, was whether the 
textbooks amounted to “tangible aid” that had a “signifi­
cant tendency” to “support” private discrimination in the 
schools. The Court said they did, noting that textbooks 
are “not legally distinguishable from the forms of state 
assistance foreclosed by the prior cases.” Id. at 463. The 
“prior cases” relied on were several of the lower court 
decisions cited in note 6 supra, which “ [t]his Court has 
consistently affirmed [,] . . . enjoining state tuition grants 
to students attending racially discriminatory private 
schools,” id., as well as Green v. Connolly, supra, the 
very ease which prohibited the granting of the tax bene­
fits at issue here.



10

On the remaining question, whether the provision of 
the textbook aid had a “significant tendency” to “sup­
port private discrimination,” the Court concluded that 
since textbooks are “ [a]n inescapable educational cost,” 
and since the state was bearing that cost, “the economic 
consequence is to give aid to the enterprise; if the school 
engages in discriminatory practices the state by tangible 
aid in the form of textbooks thereby gives support to 
such discrimination.” Id. at 464-65.7

We do not see how Norwood can be read other than to 
declare unconstitutional the issuance of tax benefits to 
racially discriminatory schools.

It can hardly be doubted that government benefits 
made available under Sections 501 and 170 provide “tan­
gible financial aid” to the schools. As this Court ex­
plicitly recognized when Bob Jones was last before it, 
“ [R]evocation of a § 501(c) (3) ruling letter and con­
sequent removal from, the Cumulative List [approving 
deductibility of donor contribution under Section 170] 
is likely to result in serious damage to a charitable or­
ganization.” Boh Jones University v. Simon, 416 U.S. 
725, 730 (1974).8 “Many contributors simply will not

7 Significantly, Norwood did not require any showing that gov­
ernment aid to private schools interfered with public school deseg­
regation. See 413 U.S. at 465-66; cf. Flagg Bros., Inc. v. Brooks, 
436 U.S. 149, 163 (1978). However, even if Norwood’s holding 
were limited to situations in which government aid to segregated 
private schools followed upon public school desegregation orders, 
it would apply here. Bob Jones and Goldsboro are both located in 
or near desegregating school districts. See Whittenberg v. Green­
ville County School Dist., decided sub nom. Stanley v. Darlington 
County School Dist., 424 F.2d 195 (4th Cir. 1970) ; Smith and 
United States v. North Carolina State Bd. of Educ., Civ. No. 2572 
(E.D.N.C., May 18, 1971) (consent decree providing for desegre­
gation of Goldsboro city schools).

8 The considerable value of these tax benefits to educational and 
other charitable institutions is demonstrated in numerous economic 
studies. See, e.g., J. P erlman, F ederal Tax P olicy 88 (3d ed. 
1977) and Feldstein, The Income Tax and Charitable Contributions:



11

make donations to an organization that does not appear 
on the Cumulative List.” Id. Indeed, Bob Jones con­
tended in that case that if it lost its tax exemption it 
would lose all contributions from those who otherwise 
take charitable deductions. See id. at 725 n.2. Consist­
ently, in the present case evidence in the record shows 
that, barely two weeks after Bob Jones’ tax exemption 
was revoked, “as a result” the school experienced “a 
decrease in the giving.” Joint Appendix in No. 81-3, 
at 250.

The fact that- the tax benefits have consistently been 
and continue to be of considerable tangible assistance 
to private schools in general is well-documented. For 
example, in Green v. Kennedy, supra, the court rested 
its conclusion that federal tax benefits constituted “sub­
stantial and significant” government support in part 
upon the evidence, placed before it by the parties, which 
was offered in an earlier federal court action involving 
Mississippi private schools. In the earlier case, Coffey v. 
State Educational Finance Commission, 296 F. Supp. 
1387 (S.D. Miss. 1969), a three-judge court invalidated 
a state law providing tuition grants to students attend­
ing private, racially discriminatory schools. The Coffey 
evidence showed that private discriminatory schools had 
“flourished in the wake of desegregation rulings,” * 9 that 
the schools were operated “on the thinnest financial 
basis,” and that the tax benefits were an important, if 
not indispensable, factor in the establishment and con­

Part I—Aggregate and, Distributional Effects, 28 Nat’l Tax J. 81, 
82 (1975), cited in Note, The Judicial Role in Attacking Racial 
Discrimination in Tax-Exempt Private Schools, 93 Harv. L. Rev. 
378, 387 n.50 (1979).

9 In this regard, evidence from the IRS demonstrated that while 
no private school exemptions had been sought by Mississippi schools 
prior to the state’s first desegregation suit (1963), such exemptions 
were sought and applications were received steadily thereafter as 
desegregation activity increased. Green v. Kennedy, supra, 309 F. 
Supp. at 1135-36. See also note 23 at 23-24 infra.



tinued operation of the schools. Green v. Kennedy, supra, 
309 F. Supp. at 1135.10 11 12

In addition, the court took special note that officials of 
the private schools themselves regarded the tax benefits 
as “psychological help to the school, from the public re­
action to what was considered as approval by the Federal 
Government.” Id.n  Moreover, this federal “help” be­
came of even greater importance to the schools after the 
state tuition grants were eliminated. According to evi­
dence relied upon by the court, solicitations for support 
from the private schools stressed the loss of the state 
grants, underscored the deductibility of contributions, 
and stated that, in the absence of such deductible con­
tributions, many students would be “forced” to return to 
the public schools. Id, at 1135.18

Finally, the continuing importance of the tax benefits 
to private schools was recently stressed by representa­
tives of the schools in congressional hearings.13

10 For a summary of further evidence concerning the contribution 
of the tax benefits to southern discriminatory private schools, see 
Spratt, Federal Tax Exemptions for Private Segregated Schools, 12 
Wm . & Mary L. Rev. 1, 3-5 (1970).

11 See McGlotten v. Connally, supra, 338 F. Supp. at 456, enjoin­
ing the Secretary of the Treasury from granting tax exemptions 
and deductibility of contributions to racially discriminatory fra­
ternal organizations and their donors, in part because by ruling 
that an organization is “charitable” under 26 U.S.C. § 170 “the 
government has marked certain organizations as ‘Government Ap­
proved’ with the result that such organizations may solicit funds 
from the general public on the basis of that approval” ; see also 
note 4 supra and accompanying text.

12 A solicitation letter quoted by the court stated that: “ [U]n- 
less we receive substantial contributions to our Scholarship Fund 
there will be many, many students, whose hands and bodies are 
just as pure as any of their classmates and playmates . . . who for 
financial reasons alone, will be forced into one of the intolerable 
and repugnant ‘other schools,’ . . .  or into dropping out of school 
entirely . . . .” 309 F. Supp. at 1135.

l s E.g., 1979 Hearings at 555 (“Tax deductible contributions to 
an independent religious school are critical in keeping tuition with-

12



is

Inasmuch as the tax benefits are, thus, of continuing 
“tangible financial aid” to tax-exempt private schools, 
and inasmuch as that aid is plainly used to finance vari­
ous necessary expenses of operating those schools-—for 
example, evidence in Coffey and in the cited hearing 
statements indicates that tax-deductible contributions are 
used to subsidize students’ tuition expenses—the “eco­
nomic consequence” is, as the Court held in Norwood, 
“to give aid” to those schools, 413 U.S. at 464. And if 
any such school “engages in discriminatory practices,” as 
the Court also held, the government through the aid nec­
essarily “gives support to such discrimination.” Id. at 
465.

There is no dispute in the present cases that through 
the federal government’s conferral of tax benefits Bob 
Jones and Goldsboro receive tangible financial aid which 
is (or would be) used to meet continuing expenses of 
those schools. Neither do those schools deny that they 
engage in racially discriminatory practices which would 
be constitutionally prohibited were they practiced in the 
public schools.14 Instead, the two schools argue that the

in reach . . .”) (statement of Paul Kienel, Association of Christian 
Schools International) ; id. at 388 (“Private schools are heavily 
dependent on tax-free contributions”) (statement of W. Wayne 
Allen, Chairman of the Board, Briarcrest Baptist School System, 
Memphis, Tennessee) ; id. at 400 (tax-exemption and deductible 
gifts are “of vital importance” for independent schools, accounting 
for “23% of the operating budgets of our boarding schools and 11% 
in our day schools”) (statement of John Esty, Jr., President, Na­
tional Association of Independent Schools).

14 Before this Court, Bob Jones has abandoned its claim, urged 
below, that its anti-miscegenation policies would be permissible if 
enforced in the public schools. That such policies are racially dis­
criminatory is well settled. Loving v. Virginia, 388 U.S. 1 (1967); 
McLaughlin v. Florida, 379 U.S. 184 (1964). As this Court said 
in Loving: “There can be no doubt that restricting the freedom 
to marry solely because of racial classifications violates the central 
meaning of the Equal Protection Clause.” 388 U.S. at 12. The fact 
that Bob Jones’ racial classifications apply to members of all races



14

federal aid supplied to them should not he constitution­
ally prohibited by Norwood, since it amounts to only 
an “indirect economic benefit” flowing from a “passive” 
governmental decision not to tax the schools or the 
schools’ contributors. Brief for Bob Jones at 20-21; 
Brief for Goldsboro at 41-42. The schools’ sole support 
for this claim is this Court’s decision in Walz p. Tax 
Commission, 397 U.S. 644 (1970). Petitioners’ reliance 
on that case is altogether misplaced.

The issue in Walz was whether granting property tax 
exemptions to churches violated the Establishment Clause 
of the First Amendment. Recognizing that the exemp­
tions did, necessarily, “afford an indirect economic bene­
fit” to the churches, id. at 664, the Court held that, for 
purposes of Establishment Clause analysis, that fact in 
itself was not controlling. Rather, the “judgment under 
the Religion Clauses must . . . turn on whether particu­
lar acts in question are intended to establish or inter­
fere with religious beliefs and practices or have the effect 
of doing so.” Id. at 669. As to the purpose of the 
exemption, the Court relied on the historic, universally 
approved tax exemption of churches in this country—an 
approval that antedated the First Amendment itself— 
and determined that this long practice was not based on 
an effort by the state to support religion, but to assure 
a “benevolent neutrality toward churches and religious 
exercise generally . . . .” Id. at 676-77. Confirming this 
“neutrality” of purpose was the fact that the tax exemp­
tion was provided to various charitable institutions, not 
solely to churches. Id. at 672-73. Regarding the second 
issue, state “entanglement” with religion, the Court 
determined that the tax exemption helped reduce rather 
than increase the risk of such entanglement, since 
“ [ejlimination of exemption would tend to expand the 
involvement of government by giving rise to tax valua­

does not make them any the less objectionable. Racial classifications 
that are “even-handed” are nevertheless “repugnant to the Four­
teenth Amendment.” Id. at 12 n .ll.



15

tion of church property, tax liens, tax foreclosures, and 
the direct confrontations and conflicts that follow in the 
train of those legal processes.” Id. at 674.

For at least four separate reasons, the Walz decision 
is of no assistance to petitioners in the present cases.

First, the fact that aid, by way of a tax exemption, to 
churches is permitted under the Establishment Clause 
does not mean that a tax exemption (and other impor­
tant tax benefits) can be granted to racially discrimina­
tory schools consistent with the Equal Protection Clause. 
Indeed, that is precisely what this Court held in Norwood:

The leeway for indirect aid to sectarian schools [for 
Establishment Clause purposes] has no place in de­
fining the permissible scope of state aid to private 
racially discriminatory schools. “State support of 
segregated schools through any arrangement, man­
agement, funds, or property cannot be squared with 
the [Fourteenth] Amendment’s command that no 
State shall deny to any person within its jurisdiction 
the equal protection of the laws.” Cooper v. Aaron, 
358 U.S. 1, 19 (1958).

Norwood v. Harrison, supra, 413 U.S. at 464 n.7 (em­
phasis supplied).

Second, while neutrality of purpose is the touchstone 
of Establishment Clause analysis, and although in Walz 
it was important that the tax exemption was afforded 
to other charitable institutions, a. neutral and legitimate 
governmental purpose will not validate a statute which 
has the effect of supporting racially discriminatory 
schools.15 As the Court said in Norwood, 413 U.S. at 466:

15 Thus, while a state may, consistent with the Establishment 
Clause, make textbooks available to private religious schools if its 
purpose is a “neutral” one, i.e., to make books available to all 
schoolchildren in public and private schools alike, Board of Educ. 
v. Allen, 392. U.S. 236 (1968), it cannot make those same books 
available to private schools that are racially discriminatory, re­
gardless of the “neutrality” of its purpose, Norwood v. Harrison, 
supra, 413 U.S. at 466.



We need not assume that the State’s textbook aid to 
private schools has been motivated by other than a 
sincere interest in the educational welfare of all 
Mississippi children. But good intentions as to one 
valid objective do not serve to negate the State’s in­
volvement in violations of a constitutional duty.

Third, even if neutrality of governmental purpose were 
more important to a determination of the legitimacy of 
the tax benefits in the present case than it is, Walz does 
not control the outcome here. As stated above, that 
decision rested in large measure on the long history of 
tax exemptions accorded to churches and the “benevolent 
neutrality” evidenced by that history. But, as the Court 
has made explicit in cases examining other benefits to 
sectarian schools, “ [w] e have no long history of state aid 
to church-related educational institutions comparable to 
200 years of tax exemptions for churches.” Lemon v. 
Kurtzman, 403 U.S. 602, 624 (1971). In fact, quite 
the opposite is true of sectarian schools. “Strong opposi­
tion has been evident throughout our history to the use 
of the state’s taxing powers to support private sectarian 
schools,” Id. at 642, 653-54 (separate opinion of Bren­
nan, J.). “In sharp contrast to the undeviating accept­
ance given religious tax exemptions from our earliest 
days as a Nation, [citing Walz], subsidy of sectarian 
educational institutions became embroiled in bitter con­
troversies very soon after the Nation was formed.” Id. 
at 645 (Brennan, J.).

Finally, if petitioners mean to argue, relying on Walz 
and the Establishment Clause cases, that tax benefits are 
not governmental aid at all because they are not a direct 
payment to the schools, the argument is completely with­
out foundation. As previously discussed, this Court indi­
cated in Norwood that for constitutional purposes it con­
siders tuition grants and tax benefits (which are used 
to stimulate and indirectly pay for, among other things, 
tuition expenses) to be identical. Moreover, in Com­
mittee for Public Education v. Nyquist, supra, the Estab­

16



17

lishment Clause ease decided the same day as Norwood, 
the Court made explicit that governmental aid in the 
form of tax benefits to sectarian schools is constitutionally 
indistinguishable from direct governmental payments 
made to those schools:

In practical terms there would appear to be little 
difference, for purposes of determining whether . . . 
aid has the effect of advancing religion, between the 
tax benefit . . . and the tuition grant . . . .  “ [I]n 
both instances the money involved represents a 
charge made upon the state for the purpose of 
religious education.”

413 U.S. at 790-91 (quoting statement of Circuit Judge 
Hays, dissenting below).

There is therefore no support in Walz and the Estab­
lishment Clause cases for the view that “indirect” govern­
ment aid by way of tax benefits can be excused when 
“direct” aid would be constitutionally prohibited.16 In­
deed, we submit that any other view of such aid would 
flout the general principle, expressly applied in Norwood, 
that government may not bring about indirectly what it 
cannot constitutionally bring about directly: “a state 
may not induce, encourage or promote private persons 
to accomplish what it is constitutionally forbidden to 
accomplish.” Norwood v. Harrison, supra, 413 U.S. at 
465.

In sum, we submit that the Norwood decision—-which 
has been consistently reaffirmed by this Court17 and by

16 For a further analysis of the constitutional and economic simi­
larity between tax benefits and direct payments, see Brown, State 
Action Analysis of Tax Expenditures, 11 H arv. C.R.-C.L. L. Rev. 
97 (1976) ; Comment, Tax Incentives as State Action, 122 U. P a. 
L. Rev. 414 (1973) ; cf. Surrey, Tax Incentives as a Device for 
Implementing Government Policy: A Comparison with Direct Gov­
ernment Expenditures, 83 Harv. L. Rev. 705, 711 (1970) (Mr. 
Surrey was Assistant Secretary of the Treasury for Tax Policy 
from 1961 to 1969).

17 See Gilmore v. City of Montgomery, 417 U.S. 556, 568-69 
(1974); Runyon v. McCrary, supra, 427 U.S. at 171, 175-77; Maher



18

the lower courts in circumstances very similar to those 
presented here “—compels the conclusion that the govern­
ment’s conferral of the tax benefits at issue amounts to 
unconstitutional support of Bob Jones’ and Goldboro’s 
discrimination. We urge the Court to say so, unmis­
takably, in these cases, .making clear beyond any doubt 
whatever that the United States government cannot con­
stitutionally support racially discriminatory practices, in 
the schools of this nation.

II. THE GOVERNMENT’S DECISION NOT TO SUP­
PORT RACIALLY DISCRIMINATORY PRIVATE 
SCHOOLS DOES NOT VIOLATE PETITIONERS’ 
FIRST AMENDMENT RIGHTS.

Petitioners’ final contention is that the government’s 
failure to support their schools with tax benefits violates 
their rights under the Religion Clauses of the First 
Amendment. They argue, first, that even if the govern­
ment’s refusal to support racially discriminatory schools 
is valid as a general rule, an exception to that rule must 
be made in favor of those schools whose racial discrimina­
tion is religiously based; otherwise, say petitioners, those 
schools’ Free Exercise rights would be violated. Second, 
petitioners argue that failure to make an exception for 
their religiously based discrimination would violate the 
Establishment Clause in that religions which do not 
discriminate would be favored over those that do. Neither 18

V. Roe, 432 U.S. 464, 477 (1977) ; Flagg Bros., Inc. v. Brooks, supra, 
436 U.S. at 163 (holding that the sovereign-function doctrine did 
not support a finding that warehouseman’s proposed sale of goods 
in storage was attributable to state and thus “state action” under 
Fourteenth Amendment, but noting that its holding does not im­
pair the precedential value of cases such as Norwood and Gilmore).

18 See, e.g., Brown v. Califano, 627 F.2d 1221, 1235 (D.C. Cir.
1980) ; Bob Jones University v. United States, 639 F.2d 147, 152-53 
(4th Cir. 1980), cert, granted, 50 U.S.L.W. 3278 (U.S., Oct. 13,
1981) ; Iron Arrow Honor Soc. v. Hufstedler, 499 F. Supp. 496, 
505-06 (S.D. Fla. 1980), aff’d 652 F.2d 445 (5th Cir. 1981), pet. 
for cert, filed, 50 U.S.L.W. 3377 (Oct. 31, 1981); Grove City College 
v. Harris, 500 F. Supp. 253, 267-68 (W.D. Pa. 1980).



19

of these arguments is in accord with the controlling stand­
ards announced by this Court. The acceptance of either 
would compromise the constitutionally rooted national 
policy against racial discrimination in the country’s 
schools. We treat only the Free Exercise claim here.

Before addressing this contention, however, we make 
the following two observations about the assumptions 
underlying petitioners’ arguments. If either assumption 
is in error, then the petitioners’ Religion Clause argu­
ments must fail.

First, if petitioners’ Walz argument—that the tax bene­
fits disputed in this case cannot be deemed tangible 
government aid for Equal Protection Clause purposes-— 
were correct, then a fortiori the withdrawal of the schools’ 
tax-exempt status by the Service involves the loss of 
such inconsequential assistance as not to trigger Free 
Exercise or Establishment Clause concerns.1® As the 
Court held in Norwood, “ [hjowever narrow may be the 
channel of permissible state aid to sectarian schools, it 
permits a greater degree of state assistance than may be 
given to private schools which engage in discriminatory 
practices that would be unlawful in a public school sys­
tem,” 413 U.S. at 470 (emphasis supplied) (citations 
omitted). We therefore proceed in this Argument on 
the basis that the tax benefits at issue here do con­
stitute “tangible government aid” to the schools.

Second, while we are also assuming in this discussion 
that the withdrawal of benefits was in fact a “penalty” 
upon petitioners’ exercise of a constitutional right, that 
assumption may not be correct. In H am s v. McRae, 
448 U.S. 297, 314-17 (1980), the Court distinguished 
a refusal by government to finance a constitutionally 
protected activity from a penalty imposed by government 
upon the activity itself. In Harris the Court held that *

w See, e.g., O’Hair v. Paine, 312 F. Supp. 434, 437 (W.D. Tex. 
1969), appeal dismissed, 397 U.S. 531 (1970), aff’d 432: F.2d 66 
(5th Cir. 1970), cert, denied, 401 U.S. 955 (1971).



20

the government could choose to subsidize certain medical 
services, intentionally excluding abortions, even though 
the right to an abortion is constitutionally protected.20 
Similarly, the government here has chosen to support only 
certain charitable institutions, excluding those that are 
racially discriminatory; the excluded institutions may 
have a constitutional right to be discriminatory, but they 
have no constitutional right to receive government sup­
port for that discrimination.

We are in general agreement with petitioners con­
cerning the basic elements to be considered in reviewing 
their claim that the government’s refusal to grant them 
tax benefits has unconstitutionally interfered with their 
Free Exercise rights: (1) the nature of the burden, if 
any, which has been placed on their right; (2) the nature 
of the governmental interest at stake; and (3) an as­
sessment whether, on balance, the governmental interest 
is sufficiently compelling to justify the particular burden 
placed upon the Free Exercise right. See Brief for 
Goldsboro at 33; Brief for Bob Jones at 23. We differ 
with petitioners, however, concerning the nature of the 
burden, the nature of the governmental interest, and 
the appropriate balancing of the two.

A. The Burden on Petitioners’ Free Exercise Rights 
Is Not Significant.

The most comprehensive description of the showing 
necessary to demonstrate that a significant burden has 
been placed upon Free Exercise rights was given by 
this Court in Wisconsin v. Yoder, 406 U.S. 205 (1972).

20 The result would be different, said the Court, analogizing- to 
Sherbert v. Verner, 874 U.S. 398 (1963), if the government chose 
to withdraw all medical benefits from a woman because she chose 
to have an abortion; such withdrawal would be similar to the with­
drawal of all employment benefits from Mrs. Sherbert because she 
chose not to work one day per week on her Sabbath. 448 U.S. at 
317 n.19. The present cases, we believe, are much more like Harris 
than Sherbert.



A comparison of this case with Yoder illustrates how 
minimal a burden on their religious beliefs and practices 
has been suffered by Goldsboro and Bob Jones.

In Yoder, members of the Amish religion challenged 
the constitutionality of a statute which required them 
to send their children to public schools through age 16. 
This Court acknowledged the state’s considerable interest 
in the education of its citizens but concluded that the 
Amish had carried their burden of overcoming that 
interest:

Aided by a history of three centuries as an iden­
tifiable religious sect and a long history as a success­
ful and self-sufficient segment of American society 
the Amish in this case have convincingly demon­
strated the sincerity of their religious beliefs, the 
interrelationship of belief with their mode of life, 
the vital role that belief and daily conduct play in 
the continued survival of Old Order Amish commu­
nities and their religious organization, and the haz­
ards presented by the State’s enforcement of a 
statute generally valid as to others. Beyond this, 
they have carried the even more difficult burden of 
demonstrating the adequacy of their alternative mode 
of continuing informal vocational education in terms 
of precisely those overall interests that the State 
advances in support of its program of compulsory 
high school education.

406 U.S. at 235. The Court’s opinion underscored four 
factors important to its decision.

First, the burden of the challenged statute on the 
Amish practices was “not only severe, but inescapable,” 
in that it directly compelled them to violate their reli­
gious beliefs. In this respect, the Court indicated that 
the Amish burden was greater than that presented in 
Braunfeld v. Brown, 366 U.S. 599, 605 (1961), where 
no such compulsion was presented, but merely a state 
regulation which made religious practices more expensive. 
Second, the Court stressed the importance of the fact 
that the case was “not one in which any harm to the 
physical or mental health of the child or to the public

21



22

safety, peace, order, or welfare has been demonstrated 
or may be properly inferred. Id. at 230. “A way of life 
that is odd or even erratic but interferes with no rights 
or interests of others is not to be condemned because it is 
different.” Id. at 224. Third, the Court stated that “ [i]t 
cannot be overemphasized that we are not dealing with 
a way of life and mode of education by a group claim­
ing to have recently discovered some ‘progressive’ or 
more enlightened process for rearing children for mod­
ern life.” 406 U.S. at 235. Finally, the Court made 
plain that since the state’s educational interest is a 
“strong” one, it is important that the courts move with 
“great circumspection” before requiring that exemptions 
be made from that interest, and that the entitlement to 
an exemption demonstrated by the Amish was one that 
“few other” religious groups could make. Id. at 235, 236.

Quite unlike Yoder, Bob Jones and Goldsboro are 
unable to demonstrate that racial discrimination is at 
the heart of their religious beliefs.21 Even more signifi­
cant, neither school suffers a direct, inescapable burden 
upon its religious practices. Rather, as was true in 
Braunfeld v. Brown, supra, the government’s decision 
not to confer tax benefits on those schools which are 
racially discriminatory has merely made operation of 
petitioners’ schools more expensive. It is clear that this 
is a lesser burden than would be a direct governmental 
compulsion forbidding Bob Jones’ or Goldsboro’s dis­
criminatory practices.22

We submit, therefore, that the burden on petitioners’ 
Free Exercise rights is not substantial. They have shown

21 See Brown v. Dade Christian Schools, Inc., 556 F.2d 310, 314, 
321-22 (5th Cir. 1977) ( en banc) (Goldberg, J., concurring), cert, 
denied, 434 U.S. 1063 (1978).

22 In fact, the Braunfeld plurality specifically listed, as an exam­
ple of an indirect burden on free exercise, a limitation on the tax 
deductibility of a religious contribution. 366 U.S. at 606. See also 
Johnson v. Robison, 415 U.S. 361, 385 (1974) (denial of veterans’ 
benefits to conscientious objector who performed alternative service 
imposed only indirect burden on free exercise).



nothing more than that the exercise of one particular 
religious practice has become somewhat more costly. We 
do not say that this is no burden at all. We do say, 
however, that the burden has not been shown to be sig­
nificant under the standards set by this Court.

B. The Governmental Interests at Stake are Com­
pelling and Constitutionally Based.

Bob Jones contends in its brief (at 29) that the only 
governmental interest furthered by the withdrawal of tax 
benefits is “an indefinitely stated federal policy respecting 
race.” Goldsboro goes even further and claims (at 38) 
that “the policy against racially discriminatory admis­
sions practices based on the sincere religious beliefs of 
sectarian schools has not been mandated by either Con­
gress or the courts but rather has been independently 
formulated by the IRS itself.” These assertions are sim­
ply not true. The public interest being furthered in these 
cases has been explicitly and repeatedly articulated by the 
Congress and by this Court. The source of this interest 
is most certainly not the IRS’ independent, open-ended 
view of public policy; rather, it is derived from the Con­
stitution itself. Thus, affirmance of the judgment below 
does not confer upon the Service unbridled discretion to 
define “the national interest” and to deny or withdraw 
tax exemptions on that basis.

As we described earlier, the constitutionally based na­
tional policy against racial discrimination in education 
was first given recognition by this Court in Brown v. 
Board of Education, supra. It extends to private schools 
both because black children excluded from such schools 
on the basis of race suffer the same injury and humilia­
tion as black children excluded from public schools on 
the basis of race, and because the growth of discrimina­
tory private schools tends to undermine governmental 
efforts to end racial discrimination in the public schools.23 28

28 The relationship between public school desegregation and the 
creation or expansion of segregated private schools—as well as the 
detrimental effects of such schools on constitutionally mandated

23



As described in the previous Argument, beginning in the 
late 1950’s and culminating in the 1973 decision in 
Nonvood v. Harrison, the federal courts gave specific

public school desegregation—has been well documented. For exam­
ple, the Fifth Circuit noted as early as 1966:

Private schools, aided by state grants, have mushroomed in 
some states in this circuit. The flight of white children to 
these new schools and to established private and parochial 
schools promotes resegregation.

United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 848- 
49 (1966), aff’d en banc, 380 F.2d 385 (5th Cir.), cert, denied sub 
nom. Caddo Parish School Bd. v. United States, 389 U.S. 840 
(1967) (footnote omitted). See also U.S. Comm’n  on Civil Rights, 
Southern School Desegregation 1966-67 71 (1967).

Many others have documented the relationship between the de­
velopment of private academies and public school desegregation. 
See, e.g., D. Bell, Race, Racism and A merican Law 496-97 (1973); 
D. N evin & R. Bills, T he  Schools That F ear Built— Segrega­
tionist Academies in  the  South 12 (1976); Southern Regional 
Council, T he  South and H er Children : School Desegregation 
1970-71 69-70 (1971) ; U.S. Comm’n  on Civil Rights, School De­
segregation in  Ten Communities 17, 29, 36, 80 (1973); Part 3D: 
Desegregation Under Law, Hearings Before the Select Committee 
on Equal Educational Opportunity of the United States Senate, 91st 
Cong., 2d Sess. (1970); Commentary, Civil Rights—i2  U.S.C. 1981: 
Keeping a Compromised Promise of Equality to Blacks, 29 U. F la. 
L. Rev. 318, 324 n.40 (1977) ; Note, Segregation Academies and 
State Action, 82 Yale L.J. 1436, 1445-46 (1973) ; Brown, Acade­
mies: Many Parents Would Give Children Bad Educations, South 
Today, Dec., 1970, at 12; Brown & Provizer, The South’s New Dual 
School System: A Case Study, New  South, Fall, 1972, at 59; Miles, 
Private Schools: Enrollment Almost Triples in Tarheel State, South 
Today, Dec., 1971, at 5-6; Tergen, Closeup on Segregation Acade­
mies, N ew South, Fall, 1972, at 50; Tergen, Private Schools, 
Charleston Style, South Today, Jan./Feb., 1971, at 1; Instant 
Schools, N ew sw eek , Jan. 26, 1970, at 59.

Courts have also long recognized the relationship between private 
academies and public school desegregation. See, e.g., Gilmore v. 
City of Montgomery, supra-, Norwood v. Harrison, supra-, Griffin v. 
County School Bd. of Prince Edward County, supra-, Brumfield v. 
Dodd, 405 F. Supp. 338 (E.D. La. 1975); Green v. Connally, supra-, 
Coffey v. State Educ. Fin. Comm’n, supra; Poindexter v. Louisiana 
Fin. Assistance Comm’n, 275 F. Supp. 833 (E.D. La. 1967), aff’d 
389 U.S. 571 (1968) ; Hall v. St. Helena Parish School Bd., 197 
F. Supp. 649 (E.D. La. 1961), aff’d 368 U.S. 515 (1962).

24



application to this clear national policy against private 
discrimination in education. Some of the decisions were 
premised on the Fifth and Fourteenth Amendments. 
Others, such as Green v. Connolly, supra, were premised 
on the nation’s policy against racial discrimination as 
reflected in civil rights statutes and the pronouncements 
of this Court.24

The Congress ratified the Brown holding and rein­
forced the ban on federal support for segregated educa­
tion in the Civil Rights Act of 1964, 42 U.S.C. §§ 2000c- 
2000d-4. This statute, which rests upon Congress’ power 
under the Fourteenth Amendment, has been construed to 
prohibit recipients of federal assistance from permitting 
students attending racially discriminatory private schools 
to participate in federally funded programs.25 The Con­
gress also exercised its Thirteenth Amendment power to 
prohibit all racial discrimination in education, whether 
or not supported with federal funds. 42 U.S.C. § 1981; 
see Runyon v. McCrary, 427 U.S. 160 (1976).26 * 28

24See also Bittker & Kaufman, Taxes and Civil Rights: "Con­
stitutionalizing” the Internal Revenue Code, 82 Yale L.J. 51, 76
(1972) (“There is. an abundance of evidence supporting the Green 
theory that segregated educational facilities contravene public 
policy; while public rather than, private schools are the primary 
focus of this emphasis on racially open education, in Green the 
court was able to muster a number of earlier judicial decisions 
extending the same principle to private education”).

26 See 41 Fed. Reg. 35553 (August 23, 1976). Section 601 of
the Act, 42 U.S.C. § 2000d, provides that racial discrimination 
cannot be practiced in “any program or activity receiving Federal 
financial assistance.” Tax benefits to private schools are included 
within this prohibition. See, e.g., McGlotten v. Connally, supra, 
338 F. Supp. at 460-61, in which the three-judge court held that 
assistance provided through the tax system is “Federal financial 
assistance” within the meaning of the Act.

28 In an effort to lend support to its contentions that the IRS 
is the sole source of our nation’s policy against racial discrimina­
tion in private schools, Goldsboro argues that Runyon is irrelevant 
to the present case because it reserved the question of the appro­
priate application of § 1981 to a school that discriminates on 
religious grounds. Brief for Goldsboro at 39. But this is not so. 
Even if in a particular case the First Amendment might give rise

25



26

In summary, we submit that this nation has a strong, 
clearly defined, constitutionally rooted policy against 
racial discrimination in all schools of this country, and 
has a constitutional ban against any governmental sup­
port for such discrimination. The sources of this policy 
and ban are the Fifth, Thirteenth, and Fourteenth 
Amendments to our Constitution. As is next discussed, 
petitioners have not shown themselves to be entitled to 
an exemption from these compelling governmental in­
terests.

C. The Government’s Interests are Sufficiently Com­
pelling to Outweigh the Minimal Burden on P eti­
tioners’ Free Exercise Rights.

We agree with petitioners that resolution of their 
Free Exercise claim requires a balancing of their in­
terests against those of the public. This Court has 
recently indicated that such a balancing is a “delicate” 
process, McDaniel v. Paty, 435 U.S. 618, 628 n.8 (1978), 
one that requires a “sensitive and difficult accommodation 
of the competing interests involved.” Id. at 635 n.8 
(Brennan, J., concurring in the judgment). It is for 
this reason that the inquiry into the precise nature of

to a defense sufficient to defeat § 1981’s application to a sectarian 
school’s racial discrimination, it would not be because § 1981 and 
the government’s constitutionally rooted policies did not apply to 
that school. Rather, it would be because § 1981 and its underlying 
policies were overridden by a more important policy. Fiedler v. 
Marumsco Christian Schools, 631 F.2d 1144, 1150 (4th Cir. 1980) 
(holding that in a § 1981 action, “the sectarian nature of the school 
is important only insofar as it may give rise to a constitutional 
defense to the claim [of racial discrimination]”). See Note, Section 
1981 after Runyon v. McCrary: The Free Exercise Right of 
Private Sectarian Schools to Deny Admission to Blacks on Account 
of Race, 1977 Duke L.J. 1219, 1252 [hereinafter cited as “1977 
Duke L.J.”] (“Although Runyon’s holding was limited to non­
sectarian schools, this governmental interest remains unchanged 
when a sectarian school asserts a free exercise claim as a defense 
to a section 1981 action. The only difference is that the courts 
must now determine whether the government’s . interest is sufficient 
to outweigh the opposing first amendment claim”).



27

each of the competing interests—including an examina­
tion of the ramifications of preferring one or the other 
interest—must be as thorough as that undertaken by 
this Court in Yoder. In our view, petitioners have 
either overlooked or misjudged most of the important 
elements in this balancing process.

First, petitioners have woefully mischaracterized the 
government’s interest. As we have shown above, what 
is at stake here is not a vaguely conceived, unsupported 
IRS view of public policy, but rather, constitutionally 
rooted and constitutionally compelled public interests of 
the highest order—interests that have been given explicit 
voice and definition by this Court, and the Congress. 
There can be no doubt that the government’s interest 
in carrying out constitutional obligations is a “com­
pelling” one, even in the face of a First Amendment 
claim. See Widmar v. Vincent, 50 U.S.L.W. 4062, 4064 
(U.S., Dec. 8, 1981).

Second, quite unlike the cases heavily relied on by 
petitioners—Sherbert v. Vemer, 374 U.S. 398 (1963) 
and Thomas v. Review Board, 101 S.Ct. 1425 (1981)27— 
here the government’s interest is enhanced still further 
by the number of other exemptions that may have to be 
granted were petitioners to prevail.28 Thus, there are 
thousands of private schools in this country which are 
currently recognized as tax exempt under Section 501 (c)

27 In both those cases, the only governmental interests advanced 
to balance against the plaintiffs’ Free Exercise rights were the 
state’s concern with protecting unemployment insurance funds, and 
a speculative contention concerning the avoidance of inquiry into 
religious beliefs. Since in neither case was there any reason to 
expect that the number of people seeking a religious exemption 
(and therefore unemployment benefits) would be significant, and 
since there had been no showing that there had been or likely would 
be any inquiries into religious beliefs, the Court concluded that the 
State’s interest was minimal. Hence, the plaintiffs’ rights prevailed. 
374 U.S. at 407; 101 S. Ct. at 1432.

28 Cf. Braunfedd v. Brown, supra, 366 U.S. at 606-09.



28

(3), or are claiming that status.29 80% of these private 
schools are church-affiliated, and they enroll 86% of all 
students attending private schools.30 The threat to the 
public policy against governmental support of racial dis­
crimination in private schools will be considerable if the 
petitioners’ exemptions are granted.31

Third, there is another important factor ignored by 
petitioners which weighs heavily against them in the 
balancing process. “When balancing the interests of the 
State against the free exercise interests of individuals or 
institutions, invariably the first determination made by 
the courts is whether the religious practice affects or 
collides with the rights of others.” 32 This is because the 
government’s interest in regulating religiously based 
conduct is greater when that conduct adversely affects 
the welfare of others. See, e.g., West Virginia State 
Board of Education v. Barnette, 319 U.S. 624, 630 
(1943).

Thus, while in Sherbert, Yoder, and Thomas the plain­
tiffs’ religious exercise threatened no harm to the in­
terests of others, here that is not so. Here, petitioners’

29 See Nat’l Center for Edug. Statistics, U.S. Dept, of Educ., 
Private Schools in American Education 15, 17 (1981).

m See id.; Rice, Conscientious Objection to Public Education: 
The Grievance and the Remedies, 1978 B.Y.U.L. Rev. 847; Note, 
The IRS, Discrimination, and Religious Schools: Does the Revised 
Proposed Revenue Procedure Exact Too High a Price?, 56 Notre 
Dame Law. 141 (1980).

81 See Brown v. Dade Christian Schools, Inc., supra, 556 F.2d at 
323 n.17, where Judge Goldberg expressly noted that, unlike the 
situations presented in Yoder and Sherbert, if religiously based 
discrimination were allowed to create an exemption to § 1981, nu­
merous fraudulent claims might follow. He reasoned that the first 
exemption granted for such discrimination is “not one that we 
could recognize without inviting numerous additional claims. . . . 
Those who turned to white academies in response to public school 
integration will undoubtedly seek ways to avoid Runyon v. Mc­
Crary’s mandate. . . . We therefore cannot view Dade Christian’s 
claim in isolation.” Id. at 324.

32 19 77  Duke L.J. at 1255; see cases cited therein.



discrimination directly affects those who are refused 
admission to their schools on racial grounds (and, in 
the case of Bob Jones, those who are denied the oppor­
tunity to freely associate with persons of other races). 
Moreover, the government’s continued support of such 
racially discriminatory private schools cannot help but 
frustrate the equal-protection rights of children attend­
ing public schools.33

Finally, contrary to the contentions of petitioners, nu­
merous cases have already been decided where public 
interests of lesser, as well as equal, magnitude as those 
presented here have prevailed over Free Exercise rights ; 
in some, unlike the instant matter, government directly 
prohibited a religious practice; 34 * in others, the Free 
Exercise claim asserted was, as here, religiously based 
racial discrimination.85 One of the latter cases involved 
Bob Jones itself. Bob Jones University v. Johnson, 896 
F. Supp. 597 (D.S.C. 1974), aff’d mem., 529 F.2d 514 
(4th Cir. 1975).36 * 38

29

38 See note 4 and accompanying- text, supra-, note 23 supra.
34 See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944) (state’s

interest in protecting minors held sufficient to support application 
of statute prohibiting minors from selling merchandise in public 
places to distribution of religious literature by minor) ; Reynolds 
v. United States, 98 U.S. 145 (1878) (state’s interest in restricting
“odious” practice of polygamy held to justify application of statu­
tory ban to adherents of Mormon religion).

96 See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. 
Supp. 941 (D.S.C. 1966), rev’d in part on other grounds, 377 F.2d 
433 (4th Cir. 1967), modified on other grounds and aff’d per curiam, 
390 U.S. 400 (1968).

38 The court held that Bob Jones’ racially discriminatory policies 
required the termination of federal assistance programs to veterans 
at the school, under the proviso of the Civil Rights Act, 42 U.S.C. 
§ 2000d, forbidding such federal assistance for discriminatory 
schools. In upholding the termination of benefits, the court rejected 
the same Free Exercise claim being made here, noting (as we have 
stressed in this brief) that the policies underlying the Civil Rights 
Act are of great weight, and that the indirect burden on Bob Jones 
was minimal. 396 F. Supp. at 607-08 and n.30.



30

So far as we are aware, the result reached in the 
previous Bob Jones case is in accordance with that in 
all other cases which have addressed the issue and is 
widely supported by the commentators. We submit that 
the same result should be reached here. Given the un­
deniable strength of the public policy against lending 
government support to racially discriminatory schools— 
a policy we urge the Court to find is a constitutionally 
compelled one; given further the facts that petitioners’ 
religious practice threatens the welfare of others, and 
that the granting of their exemption threatens to create 
a loophole undermining the policy; and, finally, given 
the fact that the burden on petitioners’ Free Exercise 
has not been shown to be significant, we submit that the 
balance tips decidedly against petitioners and any others 
similarly situated.

CONCLUSION
For the foregoing reasons, we respectfully submit 

that the Court should affirm the decisions below, and, 
in so doing, declare that the conferral of tax benefits 
on any private racially discriminatory institution is un­
constitutional and that the refusal to confer such bene­
fits on any such school, even one whose discrimination is 
religiously based, does not violate the First Amendment.

R ichard C. Dinkelspiel  
Maximilian  W. Kem pner  

Co-Chairmen
William  L. Robinson 
N orman J . Ch a ch k in  * 
F rank  R. Parker 

Attorneys
Lawyers’ Committee for 

Civil R ights Under Law 
733 15th Street, N.W.,

Suite 520
Washington, D.C. 20005 
(202) 628-6700 

* Counsel of Record

Respectfully submitted,
Robert H. Kapp 
Sara-An n  Determan 
Walter A. Sm ith , J r .
J oseph M. H assett 
David S. Tatel 
Nancy G. Yates 
Sylvia Schwarz 

H ogan & H artson 
815 Connecticut Avenue, N.W. 
Washington, D.C. 20006 
(202) 331-4500

Attorneys for Amicus Curiae