Goldsboro Christian Schools, Inc. v. United States Brief Amici Curiae on Questions of Mootness and Standing

    Nos. 81-1 and 81-31

I n  th e

Ihtjrranr (Emtrt rrf %  HntM i>tat?a
OCTOBER TERM, 1981

+
Goldsboro Christian Schools, I nc.,

Petitioner,
v.

U nited States op A merica,
Respondent.

B ob J ones U niversity,

v.
Petitioner,

U nited States op A merica,
Respondent.

O n W rits op Certiorari to the U nited States 
Court op A ppeals por the F ourth Circuit

BRIEF OF THE UNITED CHURCH OF CHRIST AS 
AMICI CURIAE ON QUESTIONS OF MOOTNESS 

AND STANDING

E arle K. Moore 
Attorney for Amici 
Moore, B erson, L ifflander 

&  Mewhinney 
555 Madison Avenue 
New York, New York 10022 
(212) 838-0600

Of Counsel:

Michael T. Sullivan 
Donna A. Demac



IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981

GOLDSBORO CHRISTIAN SCHOOLS, INC., )
Petitioner, ) No. 81-1 

v. )
UNITED STATES OF AMERICA, )

Respondent. )

BOB JONES UNIVERSITY )
Petitioner, ) No. 81-3

v. )
UNITED STATES OF AMERICA )

Respondent. )

MOTION OF AGENCIES OF THE 
'UNITED CHURCH OF CHRIST FOR LEAVE 

TO FILE BRIEF AMICUS CURIAE 
ON QUESTIONS OF MOOTNESS AND STANDING

Avery D. Post, President; Board for 
Homeland Ministries; Commission for Racial 
Justice; Office for Church in Society; and 
Office of Communication of the United Church 
of Christ ("UCC") hereby request leave of the



Court to file the brief amicus curiae submit­
ted herewith on questions of mootness which 
have arisen in these proceedings and on the 
standing of the petitioners to present issues 
under the Free Exercise Clause of the Consti­
tution of the United States. Consent has 
been granted by petitioner Bob Jones Univer­
sity and by the United States, as evidenced 
by the attached letters. Consent has been 
withheld by Goldsboro Christian Schools,
Inc.

UCC has approximately 1,750,000 
members organized in 6,462 churches in every 
state of the United States except Alaska. 
Under UCC's constitution each church is 
independent in its own right. The amici are 
the President and national instrumentalities 
of UCC recognized or established by the 
General Synod, which is the chief delegate 
body of the denomination.

UCC has deep roots in the events 
which gave rise to the Free Exercise Clause 
and to the abolition of slavery. The Pilgrims

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who fled religious persecution in Europe and 
landed at Plymouth Rock were forebears of the 
Congregational Christian Churches which 
joined in forming UCC. For a time the 
Congregational Church was an established 
church in the Connecticut colony. UCC 
participated in the abolition movement, and 
following the Civil War, UCC founded colleges 
open to Black students in each of the states 
of the Confederacy.

UCC did not submit an amicus brief 
on the merits in this case because it expected 
that its views would be adequately represented 
by the Solicitor General. In the light of 
the new situation resulting from the filing 
by the United States of its memorandum of 
January 8, 1982, UCC respectfully requests 
leave to file the amicus brief submitted 
herewith. To the best of our knowledge, no

” 3 “



amicus has yet presented the arguments 
included in this brief.

Respectfully submitted,

EARLE K. MOORE
Attorney for Amici
MOORE, BERSON, LIFFLANDER 

& MEWHINNEY 
555 Madison Avenue 
New York, New York 10022 
(212) 838-0600

Of Counsel:
Michael T. Sullivan 
Donna A. Demac

-4-



TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES i
QUESTIONS PRESENTED 1
STATEMENT OF THE CASE 2

A. On the question of
mootness 2

B. On the standing of
the petitioners 7

SUMMARY OF ARGUMENT 14
POINT I
The Promised Discontinuance of 
the Government's Allegedly 
Illegal Actions Does Not
Moot These Cases In View of the 
Likelihood That the Actions 
Involved Will Recur 18
POINT II
The Revenue Rulings In Question 
Do Not Inhibit Any Person 
Associated With Petitioners 
From Following Religious 
Conviction. Accordingly,
Petitioners Have No Claims
Under the Free Exercise Clause 23
CONCLUSION 31



TABLE OF AUTHORITIES

CASES PAGE
Braunfeld v. Broun, 366 U.S.

599 ( 1961) ...................... 26
Brown v. Board of Education,

347 U.S. 483 (1954)......... 24
Brown v. Dade Christian Schools,

Inc., 556 F.2d 310, 324 
(5th Cir. 1977) (Goldberg,
J. concurring), cert.
denied, 434 U.S. 1063 (1978)..... 17,30

Brown v. Liberty Loan Corp. of Duval,
539 F.2d 1355 (5th Cir. 1976),
cert, denied, 430 U.S. 949
(1977)............ . 20

Bus Employees v. Missouri, 374 U.S.
74, 83 S.Ct. 1657 (1963)......... 18

Church of Scientology of Hawaii 
v. U.S. 485 F.2d (9th CirT 
1973)....... . 19

Everson v. Board of Education, 330
U.S. 1,18 (1947.....  17,26,27

Gillette v. United States, 401 U.S.
437, 454 (1971................... 29

Gray v. Sanders, 372 U.S. 368, 376
(1963)........... 18

Green v. Connally, 330 F. Supp 1150,
1170 affirmed sub nom, Coit v.
Green, 404 U.S. 997 (1971)...___ 1,19,20

International Business Machines Corp, 
v. United States, 343 F.2d 914 
(Ct. Cl. 1965)...... . 21

i



TABLE OF AUTHORITIES (continued)

CASES PAGE
Jones v. Opelika, 316 U.S. 103, on rehearing, 319 U.S. 103 

(1943)........................  26
McGowan v. State of Maryland, 366 U.S.

420 ( 1961)....................  25
Network Project v. Corporation for 

Public Broadcasting, 561 F.2d 
963, 968-9 (D.C. Cir. 1977), 
cert, denied, 434 U.S. 1068 
(1978)........................  19

N.L.R.B. v. Catholic Bishop of Chicago,
440 U.S. 490, 502-3 (1979).....  31

Norwood v. Harrison, 413 U.S. 435,470
(1973).........................  27

Pierce v. Society of Sisters, 268 U.S.
570 (1925......................  24

Rubbermaid Inc, v. Federal Trade Com- 
mission, 575 F.2d 1169 (6th Cir.
1978)..........................  22

Runyon v. McCrary, 427 U.S. 160, 175
fn . 13 (1976)..........   25,27

Sherbert v. Verner, 374 U.S. 403
(1963).................. ....... 23

Super Tire Engineering Co. v. McCorkle,
416 U.S. 115, 129, 94 S."Ct7T6T~
(1968).........................  18

Thomas v. Review Board of Indians,
450 U.S. 909 ( 1981)........... 26

- ii -



TABLE OF AUTHORITIES (continued)

CASES PAGE
U.S. v. Concentrated Phosphate Export 

Assn., 393 U.S. 199, 203, 89 
S.Ct. (1968)___ ................ 18,21

U.S. v. W.T. Grant Co., 345 U.S. 629,
632 (1953)..........   ... .......... 18,20

Walz v. Tax Commission, 397 U.S. 664
(1970).... .............. ....... 28,29

Welsh v. U.S., 398 U.S. 333
(1970).............  26,29

West Virginia State Board of Education 
v» Barnette, 319 uTs~̂  62T7~6'5~3 
(1943)......•••••••••••••*••••• 30

Wisconsin v. Yoder, 406 U.S. 205
(1972)...............  .....  23,28

UNITED STATES CONSTITUTION
AMENDMENT I 17,23,24,25,27
ARTICLE III 22

STATUTES
26 U.S.C. §501(e)(3) 19
26 U.S.C. §501 ( c) (3) 20

- iii -



INTEREST OF AMICI
The interest of the amici is described 

in the motion for leave to file which is re­
spectfully incorporated herein by reference.

QUESTIONS PRESENTED
This brief will be limited to two

questions:
1. Are these cases moot?
2. Have the petitioners established 

free exercise claims of sufficient quality to 
merit consideration in these cases?

UCC agrees with the analysis of the 
three judge court in Green v. Connelly, 330 F. 
Supp 1150, aff1d sub nom, Coit v. Green, 404 
U.S-. 997 (1971). UCC adopts and joins in 
the arguments on that issue contained in the 
amicus briefs submitted by the N.A.A.C.P. Legal 
Defense and Education Fund and by the American 
Civil Liberties Union and the American Jewish
Committee.



STATEMENT OF THE CASE

(a) On the question of mootness:
On October 13, 1981, this Court 

granted writs of certiorari in the above cases. 
The grant had been supported by the Government 
which stated:

"Although there is no conflict 
of appellate decision and we 
believe that the decisions 
of the court of appeals are 
correct, we do not oppose the 
petitions in these cases. The 
Internal Revenue Service is 
currently meeting substantial 
resistance from church-related 
and religious schools to enforce­
ment of its position that such 
institutions are not entitled to 
tax-exempt status under Section 
501(c)(3) if they engage in 
racially discriminatory practices. 
This resistance is premised 
on the argument raised by peti­
tioners in these cases that the 
Service's revocation or denial of 
tax-exempt status violates the 
First Amendment rights of such 
institutions. For example, in 
Green v. Regan, No. 1355-69 
(D.D.C.), the Service is under an 
injunctive order to investigate 
certain private schools in

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Mississippi to determine whether 
they are entitled to tax exemp­
tion. There are 29 church-oper­
ated schools which have been 
identified as potentially subject 
to the court's order, and 12 of 
those schools have invoked the 
First Amendment as a bar to 
compliance with the Service's 
request for the information 
necessary to complete its 
investigation. Pursuant to the 
government's motion in Green, the 
court has suspended its injunc- 
tive order as it relates to the 
church schools pending resolution 
of the First Amendment claims.
"Because of the sensitivity of 
claims that the Internal Revenue 
Service's administration of 
the tax laws violates the First 
Amendment right of schools to the 
free exercise of religion, 
and because of the strong convic­
tion with which such claims are 
often asserted and adhered to, 
the Service has been impeded in 
its efforts to achieve even- 
handed enforcement in this area 
against religious institutions. 
Reliance on the authority of its 
published rulings or even on the 
decisions below of a single court 
of appeals has been inadequate to 
avoid unseemly confrontations 
with religious claims in the 
Service's investigations.

■k -k  ■&

-3-



"Since there is no likelihood of 
a ruling by another court of 
appeals in the near future 
on these First Amendment ques­
tions of substantial public 
importance to both the Service 
and the institutions involved, 
we believe that a definitive 
decision by this Court will 
dispel the uncertainty surround­
ing the propriety of the Ser­
vice's ruling position and foster 
greater compliance on the part of 
the affected institutions."

On January 8, 1982, the Government filed a
memorandum with the Court stating that the
Treasury Department had taken steps to grant
both petitioners tax-exempt status and refund
the taxes in dispute and further, that the
Department "has commenced the processes
necessary to revoke forthwith the pertinent
Revenue Rulings that were relied upon to deny
petitioners tax-exempt status under the
Code." Accordingly, the Government asked
that the judgments of the Court of Appeals be
vacated as moot.

On January 18, 1982, the President 
announced that he would seek legislation denying 
tax-exempt status to private schools that practice

-4-



racial discrimination. The Treasury Depart­
ment announced that it would not grant 
exemptions to such schools (except to the 
petitioners in these cases) pending Congres­
sional action

At the opening of hearings before 
the Senate Finance Committee on February 1, 
1982, documents were produced showing a sharp 
division of opinion within the Executive 
Department on the January 8 policy. Among 
those expressing concern were Roscoe L. Egger, 
Jr., head of the Internal Revenue Service; 
Lawrence G. Wallace, the Deputy Solicitor 
General in charge of these cases; John F. 
Murray, of the Justice Department's Tax 
Division; Theodore Olson, Head of the 
Department's Office of Legal Counsel, and 
Peter G. Wallison, General Counsel of the 
Treasury Department. On February 2, more 
than 200 lawyers and others in the Justice 
Department's Civil Rights Division made

^  Supplemental Memorandum for the United 
States at lOa-lla.

-5-



public a letter dated January 26th expressing 
"serious concern" about the change in policy.—' 
On February 3, 1982, Howard H. Baker, Jr., 
the Senate Majority Leader, said that 
he had advised the White House of his view 
that legislation was unnecessary and that a 
joint resolution approving the questioned 
Revenue Rulings would be sufficient. He said 
that there were "preliminary indications the 
White House would accept such a joint resolu­
tion." House Speaker Thomas P. O'Neill,
Jr. was quoted as saying that neither a
resolution nor legislation was needed and

3 /that neither would be enacted.—
Meanwhile, the plaintiffs in Green 

applied to the District Court for an order 
expanding its injunction from Mississippi to 
the entire United States. District Judge 
George L. Hart, Jr. denied the application 
but stated that Treasury officials would be 
held in contempt if the injunction were not

2/ New York Times, February 3, 1982, p. A-l.
3/ New York Times, February 4, 1982, p. A-l.



obeyed in the State of Mississippi. The 
Treasury assured the Court that it would 
comply with the injunction. An appeal from 
Judge Hart's order is pending in the District 
of Columbia Circuit.
(b) On the standing of petitioners:

Bob Jones University has about 
5,700 students and offers 50 different 
academic degrees (JA 63). It is not affili­
ated with any church, nor does it claim to 
subscribe to the religious views of any 
church. Its religious views are the views of 
its founder Bob Jones and his son and grand­
son (JA 61-62). Noting that the University 
could not be described as church-related, the 
District Court concluded that it must be 
treated as a church (A 44-45). However, a 
church is usually a group of persons who hold 
common religious views and practice those 
views together. The University's students 
are members of many different Christian 
faiths, even including UCC (JA 23-29). Many

-7-



of the faiths emphatically disagree with Dr.
Jones' scriptural interpretations and with
his ideas on racial segregation and miscege- 

4/nation.— Teachers at the University are 
expected to be born-again Christians, but 
that is, of course, no indication that they 
believe in racial separation (JA 34-35).
The University makes no effort to determine 
the attitudes, religious or otherwise, of 
applicants for admission in respect to 
interracial dating and marriage {JA 33-34, 
90-91). Nothing in the record tells us the 
religious views of parents in respect of 
these matters. Students are not required to 
engage in any baptism, confirmation or other 
ceremony of affiliation with the University. 
The only oath taken by students relates to 
multiple admission applications (JA 137-8). 
Students promise to obey University rules and 
are put on notice that they will be expelled

4/ Some have stated so in amicus briefs 
filed in these cases. See, e.g., the 
brief of the American Baptist Churches 
in the U.S.A. joined by the United 
Presbyterian Church in the U.S.A.

-8-



if they date or marry outside of their own 
race or encourage others to do so or if 
they are members of a group which advocates 
interracial marriage (JA 197, 277).

The Internal Revenue Service 
rulings under attack do not compel Bob Jones 
or any person connected with the University 
to engage in interracial dating or marriage 
in violation of his religious views. At 
most, they pressure the University to allow 
its students to speak, date and marry in 
accordance with their individual convictions.—' 

The facts in Goldsboro are similar 
to those in Jones. The School has about 750 
students (JA 6). Attendance at the School 
meets the requirements of the State's school 
attendance laws and it is subject to State 
regulation of curriculum, faculty and phys­
ical facilities (JA 6-7). Although the

5/ The Executive Committee of the University 
considered a policy of requiring parental 
consent for interracial dating and 
marriage but it was decided that the 
students were beyond the age of parental 
control (JA 253). The University did 
not consider adopting a racially 
neutral policy such as prohibiting 
undergraduate marriages generally.

-9~-



is affiliated with the Second Baptist Church 
of Goldsboro (JA 3), it is a separate non­
profit corporation (JA 5). Its opposition to 
the mixing of the races is stated to be based 
on its own religious beliefs rather than on 
the beliefs of the Second Baptist Church (JA 
5-6, 42-45). Teachers are required to take 
an oath of belief in one God and Jesus 
Christ and in the inspiration of the Old and 
New Testaments. (JA 8). So far as the 
record discloses, they are not required to 
believe in racial separation. Students and 
parents are not required to subscribe to any 
creed. They can come with "any religion 
under the sun as long as they cooperate"
(JA 86). The School's articles of incorpo­
ration outline its religious beliefs but 
contain no reference to racial separation.
(JA 6 ) .

The School's principal stated that 
it believes that the peoples of the world are 
divided into three main races descended from

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the sons of Noah, i.e., Hamites (Orientals, 
Egyptians, Indians, Negroes), Semites (Hebrews) 
and Japethites (Caucasians, Germans, Scandina­
vians, Greeks, Romans, Russians), and that 
"[God] has commanded that . . . they shall
not mix culturally or biologically." (JA 
40-41). Notwithstanding this commandment, 
however, the School has enrolled students who 
are products of prohibited biological mixtures, 
i.e., the children of a Japethite parent and 
a Hamitic or Semitic parent (JA 45). At 
least four children with one Japanese and one 
Japethite parent have been accepted. (JA 
92). The School has also accepted at least 
one full-blooded Hamite-an American Indian.
(JA 85). The principal of the School testi­
fied that he v/ould be willing to accept a 
limited number of Chinese or Egyptian students 
(JA 83, Cf. JA 92). He would not, however, 
accept a Negro because "you have a racial 
problem in the country and because of the 
problem in this area" (JA 82).

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"Q. Is there anybody, other than 
a Negro that you would have 
problems in accepting -- any 
racial grouping?
A. We don't have problems 
accepting —  accepting a Negro, 
except for the climate in the 
country today. It's not a matter 
of discrimination.
Q. And the Bible teaches you 
that when- this climate exists in 
the country, you should not 
accept Negroes in school, or any 
racial grouping where this 
climate exists?
A. Where a climate exists 
whereby you have a certain race 
clamoring for certain things 
within the school's curriculum. 
Certain —  making certain demands 
of society, every aspect of 
society, then I think you are on 
very thin grounds when you, 
particularly in a southern region 
where you open your doors 
to them in a Christian school 
situation.
Q. Okay, now, to get back to my 
question there, but if you just 
accepted one into the school, one 
person would not cause a problem?
A. I think it would personally.
Q. Just a single person?
A. Yes, sir."

-12-



A founder of the School explained that it was 
willing to forego its views on separation of 
the races in order to admit minorities who 
could not receive a Christian education 
otherwise, but it was unwilling to accept a 
Black student "because of the positions 
taken by groups in this country such as the 
NAACP, CORE [and] the Federal Government . . "
(JA 90-91). He went on to explain that 
Blacks were excluded because of the size of 
the Black population and its militancy (JA 
92-93).

Thus there is no showing that any 
teacher, student or parent connected with 
Goldsboro is put under pressure by the IRS 
rulings to act against his or her religious 
convictions. The school corporation may 
suffer financially by denial of tax-exempt 
status. Its officers may thereby be pressed 
to announce a policy of nondiscrimination 
with which they sincerely disagree. But such 
a policy would not require them as indivi-

-13-



duals to mix with Hamites or Semites to any 
significant extent. Moreover the basis of 
their disapproval is a mixture of secular 
and scriptural concerns. Segregated schools 
have a long secular tradition in the United 
States. They have been defended on educa­
tional and social as well as religious 
grounds. The testimony of the two school 
principals shows that secular considerations 
— • i.e., fear of disruption of school disci­
pline by militant blacks —  are dominant in 
their minds. Scriptural restraints are 
regarded as something they can and do dis­
regard when the secular consequences are 
acceptable.

SUMMARY OF ARGUMENT 
1. The mere discontinuance of 

allegedly unlawful action does not moot a 
case unless it is clear that recurrence of 
the action is unlikely. This is particularly 
true where the challenged action is deeply 
rooted and long standing, and when the

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discontinuance occurs after the Court has 
taken jurisdiction. The Government's about 
face has not laid to rest the issues in these 
cases. Although the Government has assured 
the Court that the Treasury Department will 
take steps to rescind the rulings under attack, 
the Treasury has announced that it will not 
do so immediately and it may never do so. The 
legality of its proposed actions has been 
challenged and they cannot in any event be 
made applicable in the State of Mississippi 
without further judicial action.

Regardless of Congress action, this 
Court will ultimately be required to resolve 
the constitutional issues in these cases. If 
constitutional interpretation does not resolve 
issues as to presently accrued taxes, the 
questions of statutory interpretation will 
also require resolution. Clearly a prompt 
decision would promote judicial, legislative 
and administrative economy. The sharp adver­
sity necessary to a case or controversy

-15-



under Article III is clearly present. The 
exhaustive legal analysis in prior decisions 
and in the briefs of the parties and amici 
leaves no doubt that the cases are ripe for 
adjudication.

2. Bob Jones University has no 
standing under the Free Exercise Clause since 
the challenged Revenue Rulings do not exert 
pressure on any person connected with the 
University to act against his or her personal 
religious convictions. At most, the rulings 
would impel the University to permit its 
students to speak and act in accordance with 
their individual religious views. Such an 
influence would promote religious freedom 
rather than the reverse.

The Goldsboro School's separationist 
views are not shown to be the views, religious 
or otherwise, of its faculty, students and 
parents nor even the views of the Second 
Baptist Church which assisted in founding it. 
The views of the School's officers are a 
mixture of secular and scriptural ideas, but

-16-



the former are dominant. They do not give 
rise to Free Exercise claims. In any event, 
these qualified and attenuated religious 
interests are clearly outweighed by the 
compelling public interest in the quality of 
public school education.

These cases would be different if 
they concerned churches, religious orders or 
religious seminaries and public policies less 
urgent than eliminating "the badges of 
slavery."—^ A "high and impregnable 
wall"—/ must always be maintained between 
church and state, but it is evident that if 
the wall is placed too close to the state's 
vital interests and too far from central 
religious concerns, it will be repeatedly 
breached. The exemptions sought by peti­
tioners invite abuse and therefore compel 
governmental intrusion into matters of

6/ See Brown v. Dade Christian Schools,
Inc., 556 F.2d 310, 324 (5th Cir. 1977) 
(Goldberg, J., concurring), cert. 
denied, 434 U.S. 1063 (1978).

7/ See Everson v. Board of Education of 
Ewing Tp., 330 U.S. 1, 18 (1947).

-17-



conscience. The analysis of the Circuit 
would make such matters irrelevant and avoid 
government entanglement in matters of religion.

ARGUMENT 
POINT I

THE PROMISED DISCONTINUANCE OF THE 
GOVERNMENT'S ALLEGEDLY ILLEGAL 
ACTIONS DOES NOT MOOT THESE CASES 
IN VIEW OF THE LIKELIHOOD THAT THE 
ACTIONS INVOLVED WILL RECUR.______

"[M]ere voluntary cessation of allegedly 
illegal conduct does not moot a case." U. S. 
v. Concentrated Phosphate Export Assn, 393 
U.S. 199, 203 (1968), U. S. v. W. T. Grant 
Co., 345 U.S. 629 (1953).

The rule is particularly applicable 
to the voluntary abandonment of a practice 
"where the practice is deeply rooted and long 
standing" (Gray v. Sanders, 372 U.S. 368, 376 
(1963)) and is all the more true when the 
cessation occurs after the court has taken 
jurisdiction. Bus Employees v. Missouri, 374 
U.S. 74 (1963); of. Super Tire Engineering 
Co. v. Me Corkle, 416 U.S. 115, 129 (1974)
(Stewart, J., dissenting). Indeed that was

- 18-



the holding when the IRS policies here at 
issue were adopted. Green v. Connally/ 
supra, 330 F. Supp at 1170.

In Church of Scientology of Hawaii v. 
U. S.f 485 F.2d 313 (9th Cir. 1973), the IRS 
attempted to moot a claim of exemption under 
section 501(e)(3) of the Internal Revenue 
Code by tendering a refund of the taxes in 
dispute. The Court held that the taxpayer 
was entitled to obtain a judicial determina­
tion because the Service might deny exemption 
in future years.

While the refunds, if actually 
granted, may satisfy petitioners, there is no 
present and enforceable assurance to petitio­
ners that the refunds will be forthcoming. 
Mootness, from the perspective of the peti­
tions (See Network Project v. Corporation 
for Public Broadcasting, 561 F.2d 963, 968-9 
(D.C. Cir. 1977), cert. denied, 434 U.S. 1068 
(1978)), is absent. In any event, the 
announced desires of the original litigants 
to a controversy are not controlling on a

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mootness issue. Brown v. Liberty Loan
Corp. of Duval, 539 F.2d 1355 (5th Cir.
1976) , cert, denied, 430 U.S. 949 (1977).

Whatever the present articulations 
of the parties, the continuance of the 
exemptions is clearly precarious. See U. S. 
v . W. T. Grant Co., supra at 632. The 
President has declared that petitioners 
should not he tax-exempt. A declaratory 
judgment was granted in Green v. Connally, 
supra, and affirmed by this Court, holding 
that a 501(c)(3) exemption is not available 
to schools like petitioners'. That judgment 
is still in effect. While the IRS may at 
some future date disregard that judgment, the 
administrative actions necessary to effect a 
change in policy have not yet been taken and 
apparently will not be taken while the 
subject is under Congressional consideration. 
At present, this Court has only "statements" 
by various officers of the Government under­
pinning its claim of mootness. Such state­
ments, by themselves, do little more than

-20-



explain why the Government failed to brief 
its record position and certainly do not moot 
that position. See United ‘States v. Concen­
trated Phosphate Export Ass'n, supra.
Further, there is substantial disagreement in 
the Department of Justice regarding the 
legality of the Government's proposed actions, 
and legal proceedings have been instituted to 
enjoin them. Clearly, there cannot indefi­
nitely be one law for petitioners and another 
for other schools. Nor can there be one law 
for Mississippi and another for the rest of 
the United States. See International Business 
Machines Corp. v. United States, 343 F.2d 914 
(Ct. Cl. 1965).

The Congress may, of course, take 
action to restore order to the situation, but 
the Congress itself seems stalemated by the 
uncertainty as to the present state of the 
law. Moreover, the constitutional issues 
raised by both sides will have to be resolved, 
whatever action the Congress might ultimately 
take.

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Admittedly, this Court lacks 
authority under Article III to issue advisory 
opinions even when, as here, the public 
interest cries out for restoration of order. 
But the Court has before it in these cases 
well developed factual records, briefs
prepared by eminent attorneys well-versed in

*
the legal issues under review, and several 
exhaustive opinions by the lower courts.
There is no doubt that petitioners will argue 
vigorously if these cases are not found to be 
moot. If the Government does not wish to 
defend the decisions below, the Court can 
allow argument by amici whose commitment is 
not in question.—^ A true controversy is 
not mooted because one side gives up. Rubber— 
maid Inc, v. Federal Trade Commission, 575 
F.2d 1169 (6th Cir. 1978).

The Lawyers Committee for the Defense of 
Civil Rights under Law has furnished 
counsel to the Green plaintiffs since its inception.

-22-



POINT II

THE REVENUE RULINGS IN QUESTION DO 
NOT INHIBIT ANY PERSON ASSOCIATED 
WITH PETITIONERS FROM FOLLOWING 
RELIGIOUS CONVICTION. ACCORDINGLY 
PETITIONERS HAVE NO CLAIMS UNDER THE 
FREE EXERCISE CLAUSE.

Petitioners rely heavily on two 
decisions of this Court, Sherbert v. Verner, 
374 U.S. 403 (1963) and Wisconsin v. Yoder, 
406 U.S. 205 (1972). In both cases natural 
persons were penalized for acting in accor­
dance with their religious convictions.
Mrs. Sherbert was a Sabbatarian who was 
denied unemployment insurance benefits 
because she refused to work on Saturday. The 
petitioners in Yoder were Amish parents who 
were fined for schooling their children on 
farms in accordance with a long religious 
tradition. Justice Douglas dissented in 
Yoder insofar as the decision applied to 
parents whose children had not testified to 
their personal beliefs. _Id. at 243-46. The 
Court noted that it was the parents who were 
to be penalized, and there was no claim that

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the children had contrary views. Id_. at 
230-234. Justices Brennan, Stewart and White 
emphasized this point in concurring opinions.

The teaching of Yoder is that the 
religious freedom of parents and students is 
protected by the Free Exercise Clause. Yoder 
does not involve the alleged right of school 
authorities to impose their own "idiosyncratic 
views" (Id_. at 239) on students of different 
beliefs. Pierce v. Society of Sisters, 268 
U.S. 510 (1925) held that parents had the- 
constitutional right to enroll their children 
in private schools of their own selection, 
subject, of course, to the state's power to 
require, inter alia, studies "essential to 
good citizenship" and "that nothing be taught 
which is manifestly inimical to the public 
welfare".— ^ Ld. at 534. Nothing in

10/ We note in passing that racial separation 
is not "good citizenship" and is "mani­
festly inimical to the public welfare." 
Brown v. Board of Education, 347 U.S.
483 (1954).

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Pierce suggested that the school had more 
than an economic interest in seeing that its 
patrons were not subject to unlawful inter­
ference. Id. at 53 6. A school res­
tricted to students holding common reli­
gious beliefs might have standing to assert 
Free Exercise claims on their behalf. But 
neither petitioner claims that its students 
share its religious views. No case of which 
we are aware suggests that any person except 
a parent has a right under the Free Exercise 
Clause to regulate the religious practices 
of others. Nor that a corporation can have 
religious liberties apart from those of its 
members.

In McGowan v. State of Maryland, 
366 U.S. 420 (1961), this Court held that 
seven department store employees could not

11/ In Runyon v. McCrary, 427 U.S. 160 at 
175, fn.13 (1976), the Court said, "It 
is clear that the schools have standing 
to assert those arguments on behalf of 
their patrons," citing Pierce (emphasis added) .

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challenge a Sunday closing law since they
alleged no infringement of their own religious
freedoms. Cf. Braunfeld v. Broun, 366 U.S.
599 (1961). In Welsh v. U. S., 398 U.S. 333
(1970) the Court noted the "intensely personal"
nature of religious belief and in Thomas v.
Review Board of Indiana, 450 U.S. 909 (1981)
the Court noted that intrafaith differences
are not uncommon and it is the convictions of
the particular adherant which give rise to
Free Exercise claims. The seminal "Virginia

12/Bill for Religious Liberty" — ' stated:
"That no man shall be 

compelled to frequent or support 
any religious worship, place or 
ministry whatsoever, nor shall be 
enforced, restrained, molested, 
or burthened, in his body or 
goods, nor shall otherwise suffer 
on account of his religious 
opinions or belief. . . . "
(Emphasis added)

12/ The historic setting and importance of 
the Virginia Statute of Religious 
Freedom is discussed in Everson v. Board 
of Education, 330 U.S. 1 at 11-13 
(1947). See also Jones v. Opelika, 316 
U.S. 103, on rehearing, 319 U.S. T03, 
894, fn. 5 (Reed, J., dissenting)
(1943) .

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And this Court's discussion of both the Free 
Exercise and Establishment Clauses has 
usually been couched in terms of individual 
f r e e d o m s ^

Sustaining Free Exercise claims in 
Jones would protect its officers' contract 
right to enforce their religious views 
against students who may not agree. But as 
the Court stated in Norwood v. Harrison, 413 
U.S. 435, 470 (1973) and repeated in Runyon 
v. McCrary, 427 U.S. 160, 176 (1976): "while
'[i]nvidious private discrimination may be 
characterized as a form of exercising freedom 
of association protected by the First Amend­
ment . . .  it has never been accorded affirma­
tive constitutional protections'". Assuming 
arguendo that Goldsboro stands higher than 
Jones because its religious principles 
prohibit mere association, these principles 
are so readily yielded by its officers when 
there are no secular concerns that they lack

13/ See e.g. Everson, 330 U.S. at 15-16.

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the "quality" to outweigh compelling state 
interests, Cf. Wisconsin v. Yoder, supra at 
215.

Granting tax exemption to schools 
like Bob Jones University and the Goldsboro 
Christian School while denying it to other 
private schools with similar policies would 
raise serious Establishment issues. In Walz 
v. Tax Commission, 397 U.S. 664 (1970), the 
Court sustained real property tax exemp­
tions for churches but noted that New York

" . . .  has not singled out one 
particular church or religious 
group or even churches as such; 
rather, it has granted exemption 
to all houses of religious 
worship within a broad class of 
property owned by non-profit, 
quasi-public corporations which 
include hospitals, libraries, 
playgrounds, scientific, profes­
sional, historical, and patriotic 
groups. The State has an 
affirmative policy that considers 
these groups as beneficial and 
stabilizing influences in 
community life and finds this 
classification useful, desirable, 
and in the public interest."
Id. at 672-73.
"White flight" from the unitary school 

system is not a minor or isolated phenomenon.

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A policy which granted tax exemptions to 
segregated schools sponsored by fundamenta­
list religious sects but not to segregated 
schools sponsored by others would certainly 
promote such sects. Moreover it would to 
some degree promote the principles of racial 
separation espoused by such groups.

Commenting on Walz, this Court said 
that "’neutrality in matters of religion is 
not inconsistent with 'benevolence' by way of 
exemption from onerous duties...so long as an 
exemption is tailored broadly enough that it 
reflects valid secular purposes." Gillette 
v. United States, 401 U.S. 437, 454 (1971). 
But what is sought here is an exemption 
narrowly confined to religiously motivated 
racists or, consistent with Welsh, supra, 
intensely dedicated racists. Mr. Justice 
Frankfurter, who was one of this Court's most 
consistent and reasoned advocates of judicial 
restraint, said this:

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"The constitutional protec­tion of religious freedom ter­
minated disabilities, it did 
not create new privileges. It 
gave religious equality, not 

. civil immunity. Its essence is 
freedom from conformity to reli­
gious dogma, not freedom from 
conformity to law because of 
religious dogma."

West Virginia State Board of Education v. 
Barnette, 319 U.S. 624, 653 (1943).

UCC unalterably favors a "high and 
impregnable wall" between church and state, 
but such a wall can survive only so long as 
each respects the interests of the other.
The public interest in equal educational 
opportunity for all children is so compelling 
and the policies of Brown and Runyan are so 
necessary to that goal as to fall clearly 
under the authority of the state. Recog­
nizing free exercise claims in these circum­
stances would invite exaggerated and even 
fraudulent claims by other schools seeking 
exemption and would inevitably bring 
searching inquiry and government entanglement 
in matters of conscience and belief. Brown v. 
Dade Christian Schools, Inc., supra, 556 F. 2d

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at 323. Cf. N.L.R.B. v. Catholic Bishop of
Chicago, 440 U.S. 490, 502-3 (1979). This 
will not serve the interests of any church.

CONCLUSION

The Court should retain jurisdiction 
of these cases and should dismiss petitioners 
constitutional claims for lack of standing.
The decisions below should be affirmed.

Respectfully submitted,

EARLE K. MOORE
Attorney for Amici
MOORE, BERSON, LIFFLANDER 

& MEWHINNEY 
555 Madison Avenue 
New York, New York 10022 
(212) 838-0600

Of Counsel:
Michael T. Sullivan 
Donna A. Demac

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