Rogers v Loether Writ of Certiorari

    Nos. 81-757 and 81-970

<3fu tfye jiu p remz Court of ttyo Pnitei* j&oies
October Term, 1983

W. Wayne A llen, petitioner

v.
Inez Wright, et al.

D onald T. Regan, Secretary of the 
Treasury, et al., petitioners

v.
Inez Wright, et al.

ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE FEDERAL PETITIONERS

Rex E. Lee 
Solicitor General 
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217



TABLE OF AUTHORITIES
Page

Cases:
Gilmore v. City o f Montgomery,

417 U.S. 556 . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2,3
Norwood v. Harrison,

413 U.S. 455 . . . . . . . . . . . . . . . . . . . . . . . .  1,2, 3,4

Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26 . . . . . . . . . . . . . . .  2, 4, 5

Valley Forge Christian College v. Americans 
United for Separation o f Church and State,
Inc., 454 U.S. 464 . . . . . . . . . . . . . . . . . . . . . . . .  4, 5

Worth v. Seldin, 422 U.S. 490 . . . . . . . . . . . . . . . . .  5
Constitution and regulation:

U.S. Const. Art. Ill . . . . . . . . . . . . . . . . . . . . . . . . . .  5
Rev. Proc. 75-50, 1975-2 Cum. Bull. 587 . . . . . . . .  3

(I)



,3m i \ \ t  jiupremp ( E s n x v t of t \ \ z  Pnttpfr States
October Term, 1983

No. 81-757

W. Wayne Allen, petitioner

v.

Inez Wright, et al.

No. 81-970

D onald T. R egan, Secretary of the 
Treasury, et al., petitioners

v .

Inez Wright, et al.

ON W RIT OF C ERTIO RARI TO 
THE UNITED STA TE S COURT OF APPEALS FOR 

THE D ISTRIC T OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE FEDERAL PETITIONERS

Respondents’ argument is based almost solely on an 
analogy to Norwood v. Harrison, 413 U.S. 455 (1973) 
(Resp. Br. 14-21, 23, 26-29). Yet respondents consistently 
confuse Norwood's substantive holding — that the State of 
Mississippi was not entitled to give significant support to 
discriminatory private schools — with the question of 
standing.

Respondents may be correct that the Court’s substantive 
holding in Norwood did not rest “on any requirement of a 
showing of a ‘precise causal relationship’between the state

( 1)



2

aid and public school desegregation” (Resp. Br. 16). The 
question of standing, however, hinges precisely on whether 
the alleged injury, if any, “fairly can be traced to the chal­
lenged action of the defendant.” Simon v. Eastern Ky. 
Welfare Rights Organization, 426 U.S. 26, 41 (1976). 
Respondents’ extended discussion of the merits of Nor­
wood (Resp. Br. 14-18, 20-21, 23) — the only issue with 
which that opinion deals — is simply irrelevant to the issue 
here. On the issue of standing, Norwood provides little, if 
any, support for respondents’ argument.

Norwood arose in an entirely different context from this 
case. The action in Norwood was but one part of a larger 
litigation brought by public school children to compel state 
and local school authorities to put an end to the de jure 
segregation of their schools. The State’s provision of text­
books to these so-called “private” schools in Norwood was 
in essence a means for perpetuating the prior segregated 
public school system. As this Court explained in Gilmore v. 
City o f Montgomery, A ll U.S. 556, 570-571 n. SO (1974) 
(emphasis added), “The plaintiffs in Norwood were parties 
to a school desegregation order and the relief they sought 
was directly related to the concrete injury they suffered.” 
Here, respondents’ lawsuit is unrelated to any specific 
school desegregation litigation.1 The federal petitioners are 
strangers to any school desegregation cases that might 
affect respondents, and it is hard to see how the guidelines 
and procedures they employ on a nationwide basis to

'Respondents point out that one respondent is within a certified 
plaintiff class in the Boston school desegregation litigation and that 
other respondents “live in districts in which schools are desegregating 
pursuant to court order” (Resp. Br. 27-28). By no stretch of the imagina­
tion, however, could it be thought that this action, which seeks nation­
wide relief in the form of changes in IRS regulations, is “directly 
related” to those desegregation suits.



3
enforce the provisions of the tax code could be considered 
“directly related” to any school desegregation decree.2

Moreover, as respondents concede (Resp. Br. 13), there is 
no dispute here about the underlying substantive law. 
Under Internal Revenue Service guidelines and procedures, 
to qualify for tax-exempt status a private school must both 
publicly announce and operate in accordance with a racially 
nondiscriminatory policy. Rev. Proc. 75-50, 1975-2 Cum. 
Bull. 587 (Interv. Pet. App. le-12e).3 Respondents’ com­
plaint is simply that “some schools ‘are slipping through the 
Commissioner’s net of enforcement’ ” (Interv. Pet. App. 
22b n.27). Presumably, the same can be said of every penal 
and regulatory statute. Any tax exempt schools that racially 
discriminate today do so in violation of IRS rules. Even if a 
litigant in a particular case would have standing to chal­
lenge an unconstitutional Saw or program, as in Norwood, it 
does not follow that he would have standing to challenge 
the enforcement procedures under a concededly approp­
riate law or program.

In any event, we think that respondents read too much 
into Norwood when, despite the opinion’s total silence on 
the issue of standing, they use it to support a sweeping new

Respondents erroneously assert (Resp. Br. 26 (emphasis in original)) 
that “the government concedes that some black schoolchildren have 
standing to bring the instant action, but seeks to limit the class of those 
who have standing to plaintiffs who were parties to an earlier school 
desegregation order.” On the contrary, we doubt that a challenge to 
nationwide IRS enforcement guidelines and procedures could ever be 
so “directly related” to a public school desegregation suit (Gilmore v. 
City o f  Montgomery, 411 \J.S. at 570-571 n. 10, explaining the basis for 
standing in Norwood) as to serve as a basis for standing.

3 As set forth in the cited pages (Interv. Pet. App. le-12e), Rev. Proc. 
75-50 prohibits, in some detail, racial discrimination with respect to 
student admissions, faculty, school programs, and tuition and scholar­
ship practices.



4

theory of standing which, as the court of appeals recognized 
(Interv. Pet. App. 16b), points in an “opposite direction[]” 
from Simon v. Eastern Ky. Welfare Rights Organization, 
426 U.S. 26 (1976), and other decisions of this Court 
expressly addressing the pertinent principles of standing. 
Moreover, neither the court of appeals in its opinion nor 
respondents in their brief even purport to construct a coher­
ent doctrine of standing from their reading of Norwood. 
They suggest no limiting principle that would distinguish 
their claim to standing its this case from that of any other 
citizens who seek to challenge the adequacy of governmen­
tal efforts to enforce laws important to them.

Respondents’ attempts to distinguish Eastern Kentucky 
(Resp. Br. 22-23) and Valley Forge Christian College v. 
Americans United for Separation o f Church and State, 
Inc., 454 U.S. 464 (1982) (Resp. Br. 23-24) consist of no 
more than a blurring of the two distinct claims of injury they 
made in the district court. As we showed in our initial brief 
(Fed. Pet. Br. 24-28), respondents’first allegation of injury
— violation of their asserted right to have the federal 
government “steer clear” of aid to discriminatory schools4
— establishes no injury in fact. “[Assertion of a right to a 
particular kind of Government conduct, which the Govern­
ment has violated by acting differently, cannot alone satisfy 
the requirements of Art. Ill without draining those require­
ments of meaning.” Valley Forge College, 454 U.S. at 483. 
There is accordingly no relevance in respondents’claim that 
their grievance on this score is “a direct consequence of the 
unconstitutional conduct of the federal petitioners and 
would be redressed by grant of the relief sought” (see Resp.

4It should not be overlooked that respondents seek standing in this 
case to obtain relief directed to the tax exempt status not of discrimina­
tory schools only, but also of any other schools (whatever their policies) 
that may be used by “white children avoiding attendance in desegregat­
ing public school systems” (J.A. 40). See Fed. Pet. Br. 20-21 & n.20.



5
Br, 22-23) — as could equally have been said of the claim in 
Valley Forge College. Respondents further argue that their 
second allegation of injury —interference with their right to 
attend desegregated public schools — establishes, unlike 
the “generalized grievance!]” in Valley Forge College, an 
injury to their “particularized, enforceable right to equal 
educational opportunity for their children” (Resp. Br, 24 & 
n. 16).5 But this second asserted injury (if it exists at all) is 
neither caused by the actions of the federal petitioners nor 
susceptible to redress against them in court. As we showed 
in our brief (Fed. Pet. Br. 32-35), respondents’second claim 
of injury is far more “speculative” even than that rejected by 
this Court in Eastern Kentucky. The alleged injury to 
respondents is twice removed from the government conduct 
they seek to challenge. The racial composition of the public 
schools in respondents’ districts is affected only insofar as 
thousands of white parents make individual decisions on 
where to send their children to school. These decisions may 
or may not be significantly affected by whatever changes in 
policy the affected private schools may (or may not, as 
Eastern Kentucky points out) make in response to changes 
in IRS regulations.6

In short, neither allegation of injury satisfies both of the 
elements required as an “irreducible minimum” by Article 
III ( Valley Forge College, 454 U.S. at 472): (1) the plaintiff 
must allege “distinct and palpable injury to himself’ ( Worth 
v. Seldin, 422 U.S. 490, 501 (3975)), and (2) the injury must 
be fairly traceable to the alleged illegal conduct of the 
defendant and likely to be redressed by a favorable decision 
( Valley Forge College, 454 U.S. at 472).

5But see Fed. Pet. Br. 31-32.
‘Indeed, it is improbable that the racial composition of public schools 

would be substantially affected by a private school’s decision to imple­
ment a bona fide policy of nondiscrimination, or even of affirmative 
outreach.



6
For the foregoing reasons and those stated in our opening 

brief, the judgment of the court of appeals should be 
reversed.

Respectfully submitted.

Rex E. Lee
Solicitor General

F ebruary 1984

DOJ'1984-02