Allen v. Wright and Regan v. Wright Brief for the Federal Petitioners

    N os, 81-757 and 81-970

Jtt %  Bnpnm ( to rt nt %  Uttiteft States
October T e r m , 1983

W. W a y n e  Al l e n , pe titio n e r  

v.
I n e z  W r ig h t , et  a l .

D onald  T. R ega n , Secretary  of t h e  
T reasury , et  a l ., petitio n er s

v.
I n e z  W r ig h t , et  a l .

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL PETITIONERS

Rex E. Lee
Solicitor General

Glen n  L. Archer, J r.
Assistant Attorney General

Lawrence G. Wallace 
Deputy Solicitor General

Michael W. McConnell 
Assistant to the Solicitor General

E rnest J. Brown 
R obert S. P omerance 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED
Whether federal courts may entertain equity suits 

against the Secretary of the Treasury brought by par­
ents of black children in public schools seeking to have 
the Treasury revise the guidelines and procedures it uses 
to enforce the prohibition on tax exempt status for ra­
cially discriminatory private schools, where they do not 
allege discrimination or any other distinct injury to 
themselves or their children by any private school or by 
the Treasury.

( i )





TABLE OF CONTENTS
Page

Opinions below.....................   2
Jurisdiction ..................................................................  3
Constitutional provisions, statutes and regulations 

involved ..................................-.................................  3
Statement:

A. Background ....................................     3
B. The proceedings in this case.......................... - 9

Summary of argument ............     17
Argument:

I. Respondents lack standing to challenge Treasury
guidelines and procedures that have been sub­
ject to executive and legislative review and re­
sult in no concrete injury to them --------------- 19

II. Respondents’ allegations of injury establish no
direct and concrete injury caused by the govern­
ment’s actions and redressible by the courts---  24
A. Respondents’ allegation that the government

provides tangible aid to racially segregated 
institutions establishes no “injury in fact,” 
but only a generalized grievance with gov­
ernment conduct ...... ................. ................ 24

B. Respondents’ allegation that government en­
couragement of racially segregated educa­
tional opportunities interferes with public 
school desegregation does not establish an 
injury fairly traceable to government action
and redressible in court .... ...... ........... .....  31

III. Under the prudential tests for standing estab­
lished by this Court, no person not seeking a 
tax benefit may challenge the tax treatment of 
others ................................... ................... -....... 36

( i n )



IV

Argument—Continued Page
IV. The court of appeals’ holding is not supported 

by this Court’s judgments in Norwood, Gilmore, 
or Green ........................................................... 43

Conclusion .........   49

Cases:
TABLE OF AUTHORITIES

Abortion Rights Mobilization, Inc. V. Regan, 552
F. Supp. 364 .................. .................................  41

Adams V. Richardson, 480 F.2d 1159 .................... 39
American Jewish Congress v. Vance, 575 F.2d 939.. 15, 30 
American Society of Travel Agents, Inc. V. Blu- 

menthal, 566 F.2d 145, cert, denied, 435 U.S.
947  ............................................... ............. . 15,41

Arlington Heights V. Metropolitan Housing De­
velopment Corp., 429 U.S. 252 ___ ____ ____ 34

Baker v. Carr, 369 U.S. 186 ............ ................ .....  22, 25
Blum V. Yaretsky, No. 80-1952 (June 25, 1982).... 25
Bob Jones University v. Simon, 416 U.S. 725 ....18, 40, 48 
Bob Jones University v. United States, Nos. 81-3

and 81-1 (May 24, 1983) ................4, 19, 28, 29, 37, 43
Cattle Feeders Tax Committee V. Shultz, 504 F.2d 

462 .......................................................... .............. . 41
Coit V. Green, 404 U.S. 997, aff’g Green v. Con-

natty, 330 F. Supp, 1150 ......... ..........15,18, 43, 44, 47
Connecticut V. Teal, 457 U.S. 440 ........... .............  28
Educo, Inc. V. Alexander, 557 F.2d 617 ............ . 41
Enochs V. Williams Packing Co., 370 U.S. 1 ___  40
Fairchild v. Hughes, 258 U.S. 126 _____ _____  25
Flast v. Cohen, 392 U.S. 83 ............................... .26, 28, 29
Flora V. United States, 362 U.S. 145 ...................  40
Frothingham v. Mellon, 262 U.S. 447 .... ..... .... . 36
Fusari v. Steinberg, 419 U.S. 379 ...... ................ 48
Gilmore V. City of Montgomery, 417 U.S. 556-15, 16,18,

43, 44, 45, 48
Gladstone, Realtors V. Village of Bellwood, 441

U.S. 91 ........ ...... .......... ........... ....17,19,25,36,40,43
Green v. Kennedy, 309 F. Supp. 1127, appeal d is ­

m is se d  s u b  n o m . Cannon V. Green, 398 U.S. 956.. 47, 48



Cases—Continued
V

Page
Green v. Regan, Civ. Action No. 1355-69 (D.D.C.

May 17, 1977) ........................ ........................  13
Illinois State Board of Elections V. Socialist Work­

ers Party, 440 U.S. 173____ __ __________ _ 47-48
Investment Annuity Inc. V. Blumenthal, 609 F.2d

1, cert, denied, 446 U.S. 981 ............ .............. . 41
Junior Chamber of Commerce V. United States 

Jaycees, 495 F.2d 883, cert, denied, 419 U.S.
1026 ........................................ ..........................  41

Laird V. Tatum, 408 U.S. 1 ....... ............ ..........26, 38, 42
Levitt, Ex parte, 302 U.S. 633 ............................ 27
Linda R.S. V. Richard D., 410 U.S. 614 ___ 18, 32, 34, 38
Louisiana V. McAdoo, 234 U.S. 627 ....................18, 37, 39
Lugo V. Miller, 640 F.2d 823 ................................  41
Mandel v. Bradley, 432 U.S. 173_________ ____ 48
Milliken v. Bradley, 418 U.S. 717 ....................... 28
Moose Lodge No. 107 V. Irvis, 407 U.S. 163 .....28, 30, 44
National Muffler Dealers Ass?n v. United States,

440 U.S. 472 .......... ........................... .............  39
Nomvood V. Harrison, 340 F. Supp. 1003, 413 U.S.

455 .................. ................ .......15, 16, 18, 43, 44, 45, 48
Orr v. Orr, 440 U.S. 268 ______ __________ __  38
O’Shea V. Littleton, 414 U.S. 488 ______ ______ 25, 30
Prince Edward School Foundation V. Commis­

sioner, 478 F. Supp. 107, aff’d by unpublished 
order, No. 79-1622 (D.C. Cir. June 30, 1980),
cert, denied, 450 U.S. 944 ................. ............. . 4

Regan v. Taxation With Representation, No. 81-
2338 (May 23, 1983) ................ ....................... 37

Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208 __ ___________ 26,29,37,42-43

Sierra Club V. Morton, 405 U.S. 727 .................... 25
Simon v. Eastern Ky. Welfare Rights Organiza­

tion, 426 U.S. 26 __________ __ _______ __ passim
Tax Analysts & Advocates V. Blumenthal, 566 F.2d

130, cert, denied, 434 U.S. 1086 ....... ............... 15, 41
United States V. American Friends Service Com­

mittee, 419 U.S. 7 ......................................... . 41
United States V. Cornell, 389 U.S. 299 __ _____  39
United States V. Maryland Savings-Share Insur­

ance Co., 400 U.S. 4 37



Cases—Continued
Vi

Page
United States V. Richardson, 418 U.S. 166..27, 29, 38, 42,

43, 46
United States v. SCRAP, 412 U.S. 669 ______25, 37, 46
United States V. Tunica County School District,

323 F. Supp. 1019, aff’d 440 F.2d 337 .............. 45
Valley Forge Christian College V. Americans 

United for Separation of Church and State, Inc.,
454 U.S. 464 ............... ...................... ...............passim

Warth v. Seldin, 422 U.S. 490.......... 22, 23, 25, 28, 30, 32,
33, 34, 36

Washington V. Seattle School District No. 1, No.
81-9 (June 30, 1982) .......................................  28

Constitution, statutes, and regulations:
U.S. Const.:

Art. I, § 6, Cl. 2 (Incompatibility Clause) ....26, 27-28
Art. I, § 9, Cl. 7 (Accounts Clause)    27, 28
Art. II, § 3 ..................................................  42
Art. I l l  ............  3,17,22,25,26,31,40,47
Amend. I (Establishment Clause) _______  27, 37
Amend. V ........ ............ .......... .... ............. . 3
Amend. XIV, § 1 (Equal Protection Clause) ..3, 28, 37

Anti-Injunction Act, 26 U.S.C. (Supp. V)
7421 (a) ................... ................ ................12,15, 39, 41

Declaratory Judgment Act, 28 U.S.C. (Supp. V)
2201 _______________ ___________ 12,13, 15, 40, 41

Federal Insurance Contributions Act, 26 U.S.C.
3121(b)(8)(B) _____ ______ ____ _______  4

Federal Unemployment Tax Act, 26 U.S.C.
3306(c)(8) .......................................................  4

Internal Revenue Code of 1954 (26 U.S.C.):
Section 170(a) .............................. .............  3,43
Section 170 (c) (2) ______________ 3, 4,19, 21, 33
Section 501(a)  .............. ...... ................... 3,4
Section 501(c)(3)    passim
Section 2055 _________    4
Section 2522 ____________     4
Section 6212 (& Supp. V).. ____   39
Section 6213 (& Supp. V) .........     39
Section 6532 (& Supp. V) ........................... 39



VII

Constitution, statutes, and regulations—Continued Page
Section 7402 .......      39
Section 7405 .............      39
Section 7422 (& Supp. V) .................    39
Section 7428 (& Supp. V) ......  39
Section 7476 (& Supp. V)________    40
Section 7477  ....      40
Section 7478 (Supp. V) __________  40
Section 7801(a) ................. ....... ......„.... . 39
Section 7805(a) .......................................... . 39
Sections 8001-8023 ________ _____ ______  39
Section 8021 ..... .................... ..... ............. . 42
Section 8023 ........ .............. ............. .............  42

Supplemental Appropriations and Rescission Act
of 1981, Pub. L. No. 97-12, Section 401, 95 Stat.
95 .......................................... ......... .............. . 8

Treasury Postal Service, and General Government
Appropriations Act of 1980, Pub. L. No. 96-74,
93 Stat. 559 ...... ........ .......... .................... ........ 8

Section 103, 93 Stat. 562 ...... .............. ..........  3, 8
Section 615, 93 Stat. 577 ...... .... ....................  3, 8

Pub. L. No. 96-536, Section 101(a)(1) and (4),
94 Stat. 3166 __ ____ __________________  8

Pub. L. No. 97-51, Section 101(a)(3), 95 Stat.
958 .......... .................... ................ ...................  9

Rev. Stat. 1977 (1878 ed.) (42 U.S.C. 1981) ......  3
28 U.S.C. 1253 ___ _____ ___ _______________ 47
28 U.S.C. (Supp. V) 1346 __ _________ _______ 39
28 U.S.C. (Supp. V) 1491  ....... ...... .... ............ . 39
Rev. Proc. 72-54, 1972-2 Cum. Bull. 834 ........... 5
Rev. Proc. 75-50, 1975-2 Cum. Bull. 587 ..... .3, 5, 6, 9, 12,

20, 21
Section 2.02 .................................... ............  5

Rev. Rul. 56-185, 1956-1 Cum. Bull. 202 ..... ....... 33
Rev. Rul. 69-545, 1969-2 Cum. Bull. 117 ...... ....... 33, 41
Rev. Rul. 71-447, 1971-2 Cum. Bull. 230 .............  4, 6

Miscellaneous:
127 Cong. Rec.:

pp. H5392-H5398 (daily ed. July 30, 1981).... 9
pp. H6698-H6699 (daily ed. Sept. 30, 1981).. 9



Miscellaneous—Continued Page
Currie, Misunderstanding Standing, 1981 Sup. Ct.

Rev. 41 .................................     86
H.R. 4121, 97th Cong., 1st Sess. § 616 (1981) ......  9
H.R. Rep. No. 96-248, 96th Cong., 1st Sess.

(1979) ....................................................   8,21-22
H.R.J. Res. 644, 96th Cong., 2d Sess. (1980) ___  8
H.R.J. Res. 325, 97th Cong., 1st Sess. (1981) ......  9
Tax Exempt Status of Private Schools: Hearings 

Before the Subcomm. on Oversight of the House 
Comm, on Ways and Means, 96th Cong., 1st 
Sess. (1979) ......     4,6,7



litt %  (to rt uf %  llmteft
October T e r m , 1983

No. 81-757
W. W a yn e  A l l e n , petitio n er

v.
I n ez  W r ig h t , et  a l .

No. 81-970
D onald T. R egan , Secretary  of t h e  

T reasury , et  a l ., petitio n er s  
v.

I n ez  W r ig h t , et  a l .1

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL PETITIONERS

1 Roscoe L. Egger, Jr., Commissioner of Internal Revenue, is a 
petitioner in No. 81-970, in addition to Donald T. Regan, Secretary 
of the Treasury.

In addition to Inez Wright, who is a party to this proceeding 
individually and on behalf of her minor children, Oscar Clay Renfro, 
Anthony Lee Renfro, Lisa Marie Wright, and Ephron Antoni 
Wright, Jr., of Memphis, Tennessee, the following persons are also 
respondents: Geneva Walker, individually and on behalf of her 
minor children, Johnny Ranae Walker and Vincent Calvett Walker, 
of Memphis, Tennessee; Delores G. Beamon, individually and on 
behalf of her minor children, Rynthia Beamon, Reuben Beamon, 
Jr., Cynthia Beamon, and Melvin Beamon, of Montgomery, Ala­
bama ; Mary Louise Belser, individually and on behalf of her minor 
children, Charlotte. Belser, Connie Belser, Janice Belser, Lawrence 
Belser, Marvin Belser, and Anthony Belser, of Montgomery, Ala­
bama; Etherline House, individually and on behalf of her minor 
children, Elmore House, Roger House, and Zachary House, of 
Montgomery, Alabama; Lou Ella Jackson, individually and on be­
half of her minor children Regina Jackson, Angela Jackson, Phyllis

( 1)



2
OPINIONS BELOW

The opinion of the district court (Interv. Pet. App. la- 
15a) 2 is reported at 480 F. Supp. 790. The opinion of

Jackson, Gregory Jackson, Michele Jackson, Dora Lee Jackson, 
Lewis Jackson, Jr., and Sandra Jackson, of Montgomery, Alabama; 
Elsie R. Walker, individually and on behalf of her minor children, 
Sonja S. Walker and Cornell E. Walker, Jr., of Farmville, Vir­
ginia; Anna G. Miller, individually and on behalf of her minor 
child, Joseph W. Miller, Jr., of Farmville, Virginia; Clydia Koen, 
individually and on behalf of her minor children, Robbie Koen and 
Cara Koen, of Cairo, Illinois; Annie L. Johnson, individually and 
on behalf of her minor child, Howard Johnson, Jr., of Cairo, Illi­
nois ; Mable Hollis, individually and on behalf of her minor chil­
dren, Bernadian Hollis and Frank Hollis, of Cairo, Illinois; Hyland 
L. Davis, individually and on behalf of his minor children, Damon 
A. Davis and Troy A. Davis, of Beaufort, South Carolina; Law­
rence Washington, individually and on behalf of his minor chil­
dren, Youland J. Washington and Jerry J. Washington, of Sea- 
brook, South Carolina; Rena M. Robinson, individually and on 
behalf of her minor children, Angela Christine Robinson and Carol 
Denise Robinson, of Bowman, South Carolina; Robert C. Zimmer­
man, individually and on behalf of his minor children, Robert Zim­
merman, Jr., Paul Zimmerman, Cynthia Zimmerman and Andrea 
Zimmerman, of Bowman, South Carolina; Rev. John Wilbur Wright, 
individually and on behalf of his minor children, Dedra Olether 
Wright and JohnCalvin McCumell Wright, of Holly Hill, South 
Carolina; Lavinia Washington, individually and on behalf of her 
minor children, Stephen Washington, Gregory Washington, Eliot 
Washington, and Kevin Washington, of Holly Hill, South Carolina; 
Robert Jackson, individually and on behalf of his minor child, 
Robert Jackson, Jr., of Natchitoches, Louisiana; Moses Williams, 
individually and on behalf of his minor children, Rhonda Rense 
Williams, Matra Lucille Williams, and Lula Marie Williams, of 
Tallulah, Louisiana; Fred Bracy and Betty Bracy, on behalf of 
themselves and on behalf of their minor children, Willie Bracy and 
Robert Bracy, of Monroe, Louisiana; Alma Lee Griffin and Darnell 
Griffin, on behalf of themselves and on behalf of their minor chil­
dren, Gregory Griffin, Carol Dyne Griffin, Verline Ann Griffin, Car­
men Griffin, and Terry Griffin, of Monroe, Louisiana; and Herbert 
H. Jackson, individually and on behalf of his minor children, Carla 
Cumberlander, Vincent Cumberlander, Francine Cumberland©!', and 
Herbert H. Jackson, Jr., of Roxbury, Massachusetts.

2 “Interv. Pet.” refers to the petition for a writ of certiorari 
(No. 81-757) filed by intervenor W. Wayne Allen, Chairman of the



3
the court of appeals (Interv. Pet. App. lb-58b) is re­
ported at 656 F.2d at 820.

JURISDICTION
The court of appeals entered its judgment on June 18, 

1981 (J.A. 9, 67) and denied rehearing on August 26, 
1981 (J.A. 9; Interv. Pet. App. lc, Id). The Secretary 
and the Commissioner filed a petition for a writ of certi­
orari on November 23, 1981 (No. 81-970). This Court 
granted the petition and consolidated the case with Allen 
v. Wright, et al. (No. 81-757) on June 20, 1983 (J.A. 85, 
86). The jurisdiction of this Court rests on 28 U.S.C. 
1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES 
AND REGULATIONS INVOLVED

The Fifth and Fourteenth Amendments to the United 
States Constitution, Section 501(a) and (c)(3) of the 
Internal Revenue Code of 1954 (26 U.S.C.), Rev. Stat. 
1977 (1878 ed.) (42 U.S.C. 1981), and Sections 103 and 
615 of the Treasury, Postal Service, and General Govern­
ment Appropriations Act of 1980, Pub. L. No. 96-74, 93 
Stat. 562, 577, are set forth at Interv. Pet. 2-4. The rel­
evant provisions of Article III of the Constitution and 
Section 170(a) and (c) (2) of the Internal Revenue Code 
of 1954 (26 U.S.C.) are set forth in Appendix A to the 
petition for certiorari in No. 81-970.

Rev. Proc. 75-50, 1975-2 Cum. Bull. 587, the Proposed 
Revenue Procedure, and the Modified Proposed Revenue 
Procedure are set forth respectively at Interv. Pet. App. 
le-12e, lf-13f, and lg-14g.

STATEMENT
A. Background

In 1970, the Internal Revenue Service adopted the posi­
tion that a private school will not qualify as a tax- 
exempt organization under Section 501(c) (3) of the In­
ternal Revenue Code of 1954, or as an eligible recipient

Board of Trustees of the Briarcrest School System, Memphis, 
Tennessee.



4
of charitable contributions deductible for income tax pur­
poses under Section 170(c) (2) of the Code, unless it es­
tablishes that its admissions and educational programs 
are operated on a racially nondiscriminatory basis.3 This 
position was recently upheld by this Court in Bob Jones 
University v. United States, Nos. 81-3 and 81-1 (May 
24, 1983). In Rev. Rul. 71-447, 1971-2 Cum. Bull. 230, 
the Service defined operation under a racially nondis­
criminatory policy to mean that “the school admits the 
students of any race to all the rights, privileges, pro­
grams, and activities generally accorded or made avail­
able to students at that school and that the school does 
not discriminate on the basis of race in administration of 
its educational policies, admissions policies, scholarship 
and loan programs, and athletic and other school- 
administered programs.” Under this policy, the Service 
has revoked the tax exemptions of more than 100 private 
schools that failed to adopt and publicize a racially non­
discriminatory policy (Tax-Exempt Status of Private 
Schools: Hearings Before the Subcomm. on Oversight of 
the House Comm, on Ways and Means, 96th Cong., 1st 
Sess. 252 (1979) (statement of Commissioner Jerome 
K urtz)). See, e.g., Prince Edward School Foundation v. 
Commissioner, 478 F. Supp. 107 (D.D.C. 1979), aff’d by 
unpublished order, No. 79-1622 (D.C. Cir. June 30, 1980), 
cert, denied, 450 U.S. 944 (1981).

In 1972 and in 1975, the Internal Revenue Service pub­
lished guidelines and procedures for determining whether 
a private school operates in good faith under a racially

3 Section 501(c)(3) of the Code lists organizations that are 
exempt from federal income tax pursuant to Section 501 (a ). Among 
these are organizations formed and operated exclusively for reli­
gious, charitable, or educational purposes. If an organization is 
described in Section 501(c) (3), contributions to it are deductible 
as charitable contributions for purposes of the federal income tax 
under Section 170(c) (2), and deductible for purposes of the fed­
eral estate and gift taxes under, respectively, Section 2055 and 
2522. The organization is also exempt from social security taxes 
on employees by virtue of Sections 3121(b)(8)(B) (FICA) and 
3306(c)(8) (FUTA).



5
nondiscriminatory policy. See Rev. Proc. 72-54, 1972-2 
Cum. Bull. 834; Rev. Proc. 75-50, 1975-2 Cum. Bull. 587 
(Interv. Pet. App. le-12e). Rev. Proc. 75-50, which is 
currently in effect, provides that “ [a] school must show 
affirmatively both that it has adopted a racially nondis­
criminatory policy as to students that is made known to 
the general public and that since the adoption of that 
policy it has operated in a bona fide manner in accord­
ance therewith” (Section 2.02). The Procedure is en­
forced by means of annual certifications subject to pen­
alty of perjury, reporting and recordkeeping require­
ments, and public complaints (Interv. Pet. App. 7e-8e, 
9e-lle). The Revenue Procedure enumerates require­
ments that must be met by each school seeking to estab­
lish its eligibility for tax exempt status. The district 
court summarized these requirements as follows (Interv. 
Pet. App. 8a-9a n.3) :

(1) The schools must formally state their nondis­
criminatory policy in their organizational charter or 
similar instrument (Rev. Proc. 75-50, Sec. 4.01);
(2) The schools must set forth that policy in all 
brochures, advertisements, catalogues, fund solicita­
tions and similar publications (Sec. 4.03) ;
(3) The schools must either effectively publish that 
policy under specified, detailed guidelines in newspa­
pers (Sec. 4.03-1 (a)), or broadcast media (Sec. 
4.03-1 (b )) ; or, in the alternative, they must be able 
to demonstrate that they in fact have a significant 
minority enrollment or have meaningfully sought to 
recruit such an enrollment (Sec. 4.03-2);
(4) The schools must have a nondiscriminatory pol­
icy with respect to faculty, school programs, and tui­
tion and scholarship practices (Secs. 4.04, 4.05) ;
(5) They must certify all of the above under pen­
alty of perjury (Sec. 4.06) ;
(6) The schools must provide specified information 
to [the Service] regarding the racial composition of 
their faculty and staff, the nondiscriminatory char-



6

acter of their tuition and scholarship policies, and 
the policies regarding race discrimination held by 
their incorporators, founders, board, and donors 
(Sec. 5.01-1 through 5.01-4, see also Secs. 4.07, 
4.08); and
(7) The schools must keep records for three years 
periods [sic] from the year of compilation, regarding 
racial composition of faculty and students, nondis­
crimination in scholarship and tuition, and as well 
as retaining copies of all brochures, catalogues, and 
the like (Sec. 7).4

On August 22, 1978 and February 9, 1979, the Internal 
Revenue Service published proposed Revenue Procedures 
(Interv. Pet. App. lf-13f, lg-14g) that would tighten the 
requirements for tax exempt status. Under the August 
22, 1978 proposal, any private school which had an insig­
nificant number of minority students and which was 
formed or substantially expanded during a period of 
desegregation of the public schools in its community (a 
“reviewable” school) would be presumed racially discrim­
inatory unless the school could demonstrate that it op­
erated in good faith on a nondiscriminatory basis, to be 
evaluated according to five specified factors.® The pro-

4 Even schools that meet the test of Rev. Proc. 75-50 can be found 
ineligible for tax exempt status under Rev. Rul. 71-447 ( Tax- 
Exempt Status of Private Schools: Hearings Before the Subcomm. 
on Oversight of the House Comm, on Ways and Means, 96th Cong., 
1st Sess. 253 (1979) (statement of Commissioner Jerome Kurtz)).

6 The five factors specified were:
1. Availability of and granting of scholarships or other 

financial assistance on a significant basis to minority students.
2. Active and vigorous minority recruitment programs, 

such as contacting prospective minority students and organiza­
tions from which prospective minority students could be iden­
tified.

3. An increasing percentage of minority student enroll­
ment.

4. Employment of minority teachers or professional staff.



7
posal prompted a heavy volume of adverse written com­
ments, as well as adverse testimony at public admin­
istrative hearings. In response to the public reaction, 
the Service published for public comment a revised ver­
sion of the proposed procedure on February 9, 1979. The 
revised proposal, like the earlier proposal, established ad­
ditional criteria “reviewable” schools would have to sat­
isfy in order to retain tax exempt status. The revised 
proposal, however, would have provided “greater flexibil­
ity for a school to show that it is operating on a racially 
nondiscriminatory basis” (Interv. Pet. App. 2g) by per­
mitting it to demonstrate that it had “undertaken ac­
tions or programs reasonably designed to attract minor­
ity students on a continuing basis” (id. at l lg ) .

In February and March 1979, the Oversight Subcom­
mittee of the House Committee on Ways and Means con­
ducted hearings on the IRS proposals, and received a 
great deal of adverse testimony. Tax Exempt Status of 
Private Schools: Hearings Before the Subcomm. on Over­
sight of the House Comm, on Ways and Means, 96th 
Cong., 1st Sess. (1979). In the wake of the hearings, the 
House Committee on Appropriations recommended that

5. Other substantial evidence of good faith, including evi­
dence of a combination of lesser activities, such as—

(a) Continued and meaningful advertising programs be­
yond the requirements of Revenue Procedure 75-50, or con­
tacts with minority leaders inviting applications from minor­
ity students.

(b) Significant efforts to recruit minority teachers.
(c) Participation with integrated schools in sports, music, 

and other events or activities.
(d) Making school facilities available to outside, inte­

grated civic or charitable groups.
(e) Special minority-oriented curriculum or orientation 

programs.
(f ) Minority participation in the founding of the school or 

current minority board members.
(Interv. Pet. App. 9f-10f).



8

adoption of the Service’s proposals be deferred until after 
the regular tax writing committees of Congress had de­
termined that they represented the proper interpretation 
of the tax laws (H, R. Rep. No. 96-248, 96th Cong., 1st 
Sess. 14-15 (1979)). Congress then proceeded to block 
implementation of the proposed guidelines through enact­
ment of two related provisions in the Treasury, Postal 
Service, and General Government Appropriations Act of 
1980, Pub. L. No. 96-74, 93 Stat. 559. In Section 615 
(93 Stat. 577), known as the Dornan Amendment, Con­
gress stipulated that none of the funds made available 
by that Act be used to carry out the proposed Reve­
nue Procedures of 1978 and 1979. In Section 103 (93 
Stat. 562), known as the Ashbrook Amendment, Congress 
provided that none of the funds made available by the 
Act be used “to formulate or carry out any rule, policy, 
procedure, guideline, regulation, standard, or measure 
which would cause the loss of tax-exempt status to pri­
vate, religious or church-operated schools under section 
501(c) (3) of the Internal Revenue Code of 1954 unless 
in effect prior to August 22, 1978.” The district court 
observed that “ [t]he effect of [this congressional] action 
is to retain in effect, at least until September, 1980, the 
presently effective Rev. Proc. 75-50 * * *” (Interv. Pet. 
App. 14a).

The Ashbrook-Dornan Amendments expired on October 
1, 1980, but were reinstated for the period December 16, 
1980 through September 30, 1981.'8 For fiscal year 1982, 
after the court of appeals’ decision in this case, the House 
of Representatives adopted a spending restriction that 
specifically denied funding for carrying out even court 
orders entered after August 22, 1978.7 See 127 Cong.

6 H.R.J. Res. 644, 96th Cong., 2d Sess. (1980), Pub. L. No. 96-536, 
Section 101(a)(1) and (4), 94 Stat. 3166, as amended by Supple­
mental Appropriations and Rescission Act of 1981, Pub. L. No. 97- 
12, Section 401, 95 Stat. 95.

7 The House voted to modify the 1980 Ashbrook Amendment by 
inserting the phrase “court order” in an amendment to the Treas-



9
Rec. H5392-H5398 (daily ed. July 30, 1981). The Senate 
Committee on Appropriations subsequently reported out a 
spending restriction in identical form. Under a joint 
resolution making continuing appropriations for the 1982 
fiscal year, this provision became effective as of Octo­
ber 1, 1981.8

These statutory restrictions have now expired, and the 
Internal Revenue Service is again free to consider appro­
priate modifications in its enforcement of the prohibition 
on tax exempt status for discriminatory private schools. 
Changes, if any, will be instituted through regular ad­
ministrative procedures and will be subject to congres­
sional oversight. No such changes have yet been proposed 
or adopted.

B. The Proceedings in this Case
1. Respondents are the parents of black students who 

attend public schools in seven states. They seek to repre­
sent a nationwide class of “several million” parents 
whose children attend public schools in school districts 
undergoing desegregation (J.A. 18-23, 43). In 1976, they 
brought this suit in the United States District Court for 
the District of Columbia against the Secretary of the 
Treasury and the Commissioner of Internal Revenue, al­
leging with reference to Rev. Proc. 75-50 that “regula­
tions” issued by the federal defendants are legally insuf-

ury, Postal Service, and General Government Appropriations Bill, 
1982 (H.R. 4121, 97th Cong., 1st Sees. (1981)). The bill thus 
provided in § 616:

None of the funds made, available pursuant to the provisions 
of this Act shall be used to formulate or carry out any rule, 
policy, procedure, guideline, regulation, standard, court order, 
or measure' which would cause the loss of tax-exempt status to 
private, religious, or church-operated schools under Section 
501(e) (3) of the Internal Revenue Code of 1954 unless in ef­
fect prior to August 22,1978 (emphasis added).

8H.R.J. Res. 325, 97th Cong., 1st Sess. (1981), Pub. L. No. 97-51, 
Section 101(a) (3), 95 Stat. 958; see 127 Cong. Rec. H6698-H6699, 
H6702 (daily ed. Sept. 30, 1981).



10
ficient in that they permit schools offering “racially segre­
gated educational opportunities” to receive tax exempt 
status (J.A. 17-18, 25). Although the complaint asserted 
that “there are more than 3,500 racially segregated pri­
vate academies operating in the country having a total 
enrollment of more than 750,000 children” (J.A. 24), it 
cited by name only 19 “representative” private schools.8 
Each of these schools is alleged to have “an announced 
policy of nondiscrimination, and [to have] satisfied de­
fendants in this regard,” but, according to the complaint, 
is “racially segregated” (J.A. 26-38).“  According to the 
complaint, the federal officials “have fostered and encour­
aged the development, operation and expansion of many 
of these racially segregated private schools by recognizing 
them as ‘charitable’ organizations described in Section 
501(c) (3) of the Internal Revenue Code” (id. at 24).

9 The following' private schools were identified by name in the 
complaint: Harding Academy, Briarcrest Baptist School System 
and the Southern Baptist Schools of Whitehaven, Inc., Memphis, 
Tennessee; Natchitoches Academy, Natchitoches Parish, Louisiana; 
Delta Christian Academy and Tallulah Academy, Madison Parish, 
Louisiana; River Oaks School, Monroe, Louisiana; Holly Hill Acad­
emy and Bowman Academy, Orangeburg, South Carolina; Sea Pines 
Academy, Beaufort County, South Carolina; Prince Edward Acad­
emy, Prince Edward County, Virginia; Montgomery Academy and 
St. James Parish School, Montgomery, Alabama; Camelot Parochial 
School, Cairo, Illinois; Hyde Park Academy, South Boston Heights 
Academy and Parkway Academy, Boston, Massachusetts (J.A. 26- 
38). The complaint referred, in addition, to “thousands of other 
racially segregated independent private schools which operate in or 
serve desegregating public school districts and which have received, 
applied for, or will apply for tax exemptions” (id. a t 32-33).

10 Respondents apparently used the term “racially segregated” 
with reference to private schools in their complaint to signify only 
that there were few or no black students in attendance at a school, 
and not to signify that the absence of more black students was the 
result of racially exclusionary practices. At a hearing in the dis­
trict court, counsel for respondents conceded that he did not know 
whether any of the black children who are parties to this action 
would be denied admission to any private school on the basis of 
race (J.A. 62-63).



11
To establish their standing to sue, respondents included 

an allegation of injury in their complaint. It states, in 
full (J.A. 38-39) :

As a consequence of the grant of federal tax bene­
fits to racially segregated private schools, or the or­
ganizations that operate them, which are located in 
or serve desegregating public school districts, plain­
tiffs and their class now are suffering and will con­
tinue to suffer serious, substantial and irreparable 
injury for which they have no adequate remedy at 
law. Specifically, the grant of federal tax exemp­
tions to such schools and organizations in such cir­
cumstances injures plaintiffs in that it:

(a) constitutes tangible federal financial aid 
and other support for racially segregated edu­
cational institutions, and
(b) fosters and encourages the organization, 
operation and expansion of institutions provid­
ing racially segregated educational opportu­
nities for white children avoiding attendance in 
desegregating public school districts and thereby 
interferes with the efforts of federal courts, 
HEW and local school authorities to desegregate 
public school districts which have been operating 
racially dual school systems.

Respondents did not allege that they or their children had 
applied to, been discouraged from applying to, or been 
denied admission to any private school or schools.11 Nor 
did they allege that denial of tax exempt status would 
cause any private school or schools to close down, decrease 
in enrollment,, or change their practices.12 They conceded 
that their children now attend desegregated schools (J.A.

11 As the court of appeals noted, “Plaintiffs * * * maintain they 
have no interest whatever in enrolling their children in a private 
school” (Interv. Pet. App. 13b).

12 As the court of appeals noted, “Plaintiffs * * * claim indiffer­
ence as to the course private schools would take” (Interv. Pet. App. 
18b).



12
62). They did not allege that their own tax liability is 
affected by the conduct or policies they challenge.

Respondents requested a declaratory judgment that 
“the acts, policies and practices of defendants in granting 
federal tax exemptions and benefits to racially segregated 
private schools * * * violate Section 501 of the Internal 
Revenue Code of 1954, Title VI of the Civil Rights Act 
of 1964, Section 1 of the Civil Rights Act of 1866, and 
the Fifth and Fourteenth Amendments to the Constitu­
tion of the United States” (J.A. 40). In addition, they 
sought a permanent injunction requiring the federal offi­
cials to revoke, or to deny, tax exemptions for all private 
schools (or for the organizations that operate the 
schools), “which have insubstantial or nonexistent minor­
ity enrollments, which are located in or serve desegregat­
ing public school districts, and which either (J.A. 40) —

(1) were established or expanded at or about the 
time the public school districts in which they are 
located or which they serve were desegregating;

(2) have been determined in adversary judicial or 
administrative proceedings to be racially segre­
gated ; or

(3) cannot demonstrate that they do not provide 
racially segregated educational opportunities for 
white children avoiding attendance in desegre­
gating public schools.

Respondents further requested the court to grant in­
junctive relief in the nature of mandamus requiring the 
federal officials to revise Rev. Proc. 75-50 to provide that 
recognition of exempt status for all such schools and 
organizations would be revoked or denied (J.A. 40-41).

The Secretary and the Commissioner filed a motion to 
dismiss the complaint on the grounds that respondents 
lacked standing to sue; that they failed to state a claim; 
that the subject matter of their suit was nonreviewable; 
and that the action was barred by the Anti-Injunction 
Act (26 U.S.C. (Supp. V) 7421(a)), the tax limitation 
in the Declaratory Judgment Act (28 U.S.C. (Supp. V)



13
2201), and the doctrine of sovereign immunity (J.A. 45- 
46). The district court granted leave to intervene and to 
file a motion to dismiss to W. Wayne Allen, Chairman of 
the Board of the Briarcrest School, Memphis, Tennessee, 
one of the private schools named in respondents’ com­
plaint (id. at 26-27, 47-50, 54-57).

2. The district court dismissed the suit on three 
grounds (J.A. 64, 65; Interv. Pet. App. 3a).18 First, the 
court ruled that respondents had no standing to assert 
their claims because (a) they failed to assert a distinct, 
palpable, and concrete injury, (b) they had not shown 
that any injury they alleged was fairly traceable to the 
actions of the federal officials, (c) it was speculative 
whether the relief requested would remedy the injury, 
and (d) there was not a sufficient degree of concrete ad­
verseness between respondents and the federal officials 
(Interv. Pet. App. 4a-lla).

In so ruling, the court relied on Simon v. Eastern Ky. 
Welfare Rights Organization, 426 U.S. 26 (1976). The 
court noted that there was no allegation that any of the 
private schools cited in the complaint actually were dis­
criminating in violation of the Constitution or of federal 
law, or that any of respondents or their children had suf­
fered any discriminatory treatment or exclusion (Interv. 
Pet. App. 4a-6a). The court considered it to be specula­
tive whether enforcement of respondents’ proposed guide­
lines would cause any school permanently to lose a tax 
exemption that it would have retained under existing In­
ternal Revenue Service procedures (id. at 8a-10a). Fur­
thermore, even if implementation of respondents’ pro­
posed enforcement procedures might serve to deprive

13 In a related action confined solely to private schools in the 
State of Mississippi, Green V. Regan (Civ. Action No. 1355-69 
(D.D.C. May 17, 1977)), which was consolidated with the instant 
case in the district court, the district court denied the government’s 
motion to dismiss (J.A. 53), finding that the Green plaintiffs “have 
a right to proceed to determine whether or not * * * there has been 
good-faith compliance with the Order of this Court” (J.A. 52). See 
also Interv. Pet. App. 3a n.l.



14
some schools of exemptions that they could not later re­
cover, the court regarded it as equally speculative 
whether a loss of exemptions would produce a change in 
the desegregation of any given school district. Instead, it 
appeared to the court probable that many schools had 
only a limited dependence on tax exemptions and, if 
forced to choose, would forgo tax-exempt status rather 
than abandon their practices. The court accordingly con­
cluded that respondents had failed to show a sufficient 
causal nexus between the injury alleged and the chal­
lenged procedures {id. at 6a-10a).

Second, the district court ruled that respondents’ action 
was “barred by the doctrine of nonreviewability” because 
it “would require this Court to undertake detailed or con­
tinuing review of a generalized IRS enforcement pro­
gram, or to review complex issues of tax enforcement 
policy and of agency resource allocation” (Interv. Pet. 
App. 11a). As the court saw the matter, such review 
“would be tantamount to this Court becoming a ‘shadow 
commissioner of Internal Revenue’ to run the administra­
tion of tax assessments to private schools in the United 
States” {id. at 12a).

Finally, the court concluded that the enactment in 1979 
of the Ashbrook and Dornan Amendments to the Treas­
ury Appropriations Act expressed “the Congressional in­
tent that Section 501(c) (3) of the Internal Revenue Code 
[was] not susceptible of the construction which [re­
spondents] would place upon it in this case” {id. at 14a- 
15a). While the court acknowledged that the Ashbrook 
and Dornan Amendments (as applied in fiscal years 1980 
and 1981) apparently allowed a federal court to fashion 
a remedy, it concluded that “in such an area ripe [sic] 
with legislative history and government regulation, it is 
not the business of a federal court to explicitly thwart 
the will of Congress or to otherwise fail to carry it out” 
{id. at 15a).14

14 The district court found it unnecessary to consider the other 
grounds urged in support of the motion to dismiss, viz., absence



15
3. A divided panel of the court of appeals reversed the 

judgment and remanded the case for further proceedings 
(J.A. 67). The court ruled that respondents had stand­
ing to maintain their action (Interv. Pet. App. 12b-25b). 
In so ruling, the court recognized that Simon v. Eastern 
Ky. Welfare Rights Organization, supra, “suggests that 
litigation concerning tax liability is a matter between 
taxpayer and IRS, with the door barely ajar for third 
party challenges” (Interv. Pet. App. 16b). It recognized 
also that certain of its own previous decisions had dis­
missed for lack of standing suits brought by persons who 
sought to litigate the tax liability of others (id. at 17b, 
n.24).115

But the court of appeals concluded that other decisions 
of this Court point in an “opposite direction!]” (Interv. 
Pet. App. at 16b). See Coit v. Green, 404 U.S. 997 (1971), 
aff’g Green v. Connally, 330 F. Supp. 1150 (D.D.C. 1971); 
Norwood v. Harrison, 413 U.S. 455 (1973) ; Gilmore v. 
City of Montgomery, 417 U.S. 556 (1974). In the court’s 
view, those cases “recognized the right of black citizens to 
insist that their government ‘steer clear’ of aiding schools 
in their communities that practice race discrimination” 
(Interv. Pet. App. 24b-25b). The court ruled that “ [i]n 
view of the centrality of that right in our contemporary 
(post-Civil War) constitutional order, we are unable to 
conclude that Eastern Kentucky speaks to the issue be­
fore us” (ibid.).

In addition, the court found no impediment to the 
action in the doctrine of non-reviewability (Interv. Pet.

of illegal state action, ban of the Anti-Injunction and Declaratory 
Judgment Acts, sovereign immunity, and failure to join indispensa­
ble parties. The court of appeals remanded on those issues (Interv. 
Pet. App. 3b n.2), and we will not address them in this brief.

15 See American Society of Travel Agents, Inc. v. Blumenthal, 
566 F.2d 145 (D.C. Cir. 1977), cert, denied, 435 U.S. 947 (1978) ; 
Tax Analysts & Advocates v. Blumenthal, 566 F.2d 130 (D.C. Cir. 
1977), cert, denied, 434 U.S. 1086 (1978). See also American 
Jewish Congress v. Vance, 575 F.2d 939 (D.C. Cir. 1978).



16

App. 32b-35b). The court concluded that respondents’ 
claims derive from constitutional concerns that courts, not 
administrators, are better equipped to address (id. at 
32b-33b n.53). In the court’s view, if respondents were 
to prevail on the merits of their claims, relief would not 
entail “large scale judicial intervention in the adminis­
trative process” (id. at 35b). Nor did the court consider 
the Ashbrook and Dornan amendments to be an obstacle 
to fashioning a remedy (id. at 25b-32b). Those amend­
ments, as the court construed them, were merely tem­
porary checks on Internal Revenue Service initiatives and 
did not purport to control judicial dispositions (id. at 
29b-30b).16

In dissent, Judge Tamm would have held that respond­
ents had no standing to sue (Interv. Pet. App. 38b-58b). 
He found that they failed to allege a distinct and palpable 
injury to themselves, or a sufficient nexus between the 
Internal Revenue Service’s actions and whatever injury 
they claimed to have suffered. In his view, the majority 
of the court erroneously interpreted Green, Norwood, and 
Gilmore “as requiring it to abandon long-established 
standing principles, principles limiting the exercise of 
judicial power to the redress of actual injury” (Interv. 
Pet. App. 38b; emphasis in original). The majority’s 
opinion, he concluded, was “the product of an impermis­
sible shift in focus from the right of these plaintiffs to 
make their challenge to the rights they wish to assert” 
(id. at 57b).

On August 26, 1981, the court denied the government’s 
motion for en banc consideration, three judges dissenting 
(Interv. Pet. App. Id ).17

16 The court of appeals’ decision was rendered before the Ash­
brook Amendment was amended expressly to encompass court or­
ders. See note 7, supra.

17 Thereafter, on motion of respondents (J.A. 68-78), the court 
of appeals issued orders on February 18, 1982, and on March 24, 
1982 (Tamm, J., dissenting), enjoining the Secretary and the Com­
missioner from granting Section 501(c)(3) status to any school 
that unlawfully discriminates on the basis of race- (J.A. 81-84).



17

SUMMARY OF ARGUMENT

I. Respondents seek judicial revision of Internal Reve­
nue Service guidelines and procedures that have been the 
subject of intense public comment and congressional over­
sight over the last decade. Alleging no injury to them­
selves at the hands of the private schools whose tax ex­
emptions they challenge, and no injury at the hands of 
the government defendants other than their disapproval 
of government practices, respondents stand as mere dis­
appointed observers of the governmental process. The 
judgment below holding that they have standing to main­
tain this action is in direct conflict with this Court's deci­
sion in Simon v. Eastern Ky. Welfare Rights Organiza­
tion, 426 U.S. 26 (1976), and with other decisions estab­
lishing the limitations on the jurisdiction of an Article 
III court.

II. Respondents alleged two injuries stemming from 
the government’s method of enforcing the restrictions on 
tax exemptions for discriminatory private schools. 
Neither allegation satisfies this Court’s requirements for 
establishing standing to sue.

A. The first allegation of injury—that the govern­
ment’s action “constitutes tangible federal financial aid 
and other support for racially segregated educational in­
stitutions” (J.A. 38)—amounts to no more than “asser­
tion of a right to a particular kind of government con­
duct,” which this Court has held to be an insufficient 
basis for standing under Article III (Valley Forge Chris­
tian College v. Americans United for Separation of 
Clmrch and State, Inc., 454 U.S. 464, 471-476, 483 
(1982)). Respondents simply have not alleged any “dis­
tinct or palpable” injury to themselves (see Gladstone, 
Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979)).

B. The second allegation of injury—that the govern­
ment’s “encourage [ment]” of segregated private schools 
“interferes with the efforts of federal courts, HEW and 
local school authorities to desegregate public school dis-



18

tricts” (J.A. 39)—shares the deficiency of the first, and 
is also too speculative to support standing, since a change 
in Internal Revenue Service guidelines and procedures 
might or might not result in a decrease in availability of 
segregated private schools to white children fleeing de­
segregating public schools. Indeed, respondents have not 
even alleged that the relief they seek would produce such 
a result. Their position, therefore, has all the shortcom­
ings, and more, of the plaintiffs’ position in Eastern Ken­
tucky, supra.

III. An examination of the means by which Congress 
intended the federal tax system to operate suggests that 
no person who is not himself seeking a tax benefit has 
standing to challenge the Internal Revenue Service’s 
treatment of the tax liabilities of others. See Linda R. S. 
v. Richard D., 410 U.S. 614 (1973); Louisiana v McAdoo, 
234 U.S. 627 (1914) ; Eastern Kentucky, supra, 426 U.S. 
at 46 (Justice Stewart, concurring). Opening the courts to 
generalized grievances concerning enforcement of the tax 
laws would lead to extensive interference in the adminis­
trative process, intended to be left to the supervision of 
the President and Congress.

IV. The court of appeals erred in concluding that this 
Court’s decisions in Coit v. Green, 404 U.S. 997 (1971), 
Norwood v. Harrison, 413 U.S. 455 (1973), and Gilmore 
v. City of Montgomery, 417 U.S. 556 (1974), are at odds 
with Eastern Kentucky and the other rulings of this 
Court on the doctrine of standing. Although Gilmore ad­
dresses standing in but a footnote and Norwood not at 
all, it is clear that the plaintiffs in those cases had stand­
ing on the traditional basis of protecting rights they were 
entitled to under earlier judicial decrees (see Gilmore, 
supra, 417 U.S. at 570 n.10). Coit v. Green, a summary 
affirmance, did not constitute a ruling by this Court on 
the issue of standing, and was later held by this Court to 
“lack[] the precedential weight of a * * * truly adver­
sary controversy” (Bob Jones University v. Simon, 416 
U.S. 725, 740 n .ll (1974)).



19

ARGUMENT
L RESPONDENTS LACK STANDING TO CHAL­

LENGE TREASURY GUIDELINES AND PROCE­
DURES THAT HAVE BEEN SUBJECT TO EX­
ECUTIVE AND LEGISLATIVE REVIEW AND RE­
SULT IN NO CONCRETE INJURY TO THEM

Respondents, who are parents of black public school 
children suing on behalf of themselves and their children 
and on behalf of all other parents of black students at­
tending public schools in districts undergoing desegrega­
tion, have brought this suit to require the Secretary of 
the Treasury and the Commissioner of Internal Revenue 
to revise Internal Revenue Service guidelines and proce­
dures implementing the prohibition on tax exempt treat­
ment for educational institutions that engage in racially 
discriminatory practices, under Sections 170(c) (2) and 
501(c)(3) of the Internal Revenue Code of 1954 (26 
U.S.C.). Respondents’ complaint challenges not the pro­
priety of the Internal Revenue Service’s substantive policy 
against fax exempt status for discriminatory schools, 
which was upheld by this Court last Term in Bob 
Jones University v. United States, Nos. 81-3 and 81-1 
(May 24, 1983), but the effectiveness of the measures by 
which that policy is enforced. As the court of appeals ex­
pressed it, “plaintiffs complain * * * that some schools 
'are slipping through the Commissioner’s net of enforce­
ment’ ” (Interv. Pet. App. 22b n.27).

Respondents allege18 that current Internal Revenue 
Service guidelines and procedures regarding applications 
for tax exempt status by private schools are “legally in­
sufficient” because “many private schools with insubstan­
tial or nonexistent minority enrollments which were or­
ganized or expanded at or about the time public school

18 For purposes of evaluating the correctness of the district 
court’s dismissal of respondents’ action, the allegations in their 
complaint will be accepted as true. See Gladstone, Realtors v. Vil­
lage of Bellwood, 441 U.S. 91,115 (1979).



20

districts in which they are located or which they serve 
were desegregating, have retained their federal tax ex­
emptions merely by adopting and certifying—but not 
implementing—the required policy of nondiscrimination” 
(J.A. 25).19 Respondents do not challenge the tax exempt 
status of any particular schools, although their complaint 
lists 19 “representative” tax exempt private schools that 
they allege to be “racially segregated” (J.A. 26-38). 
Respondents admittedly have not alleged that they have 
been excluded or otherwise discriminated against by these 
or any other tax exempt private schools; nor do they 
allege that revocation of the schools’ tax exempt status 
would cause the schools to close down or to alter their 
practices. As the court of appeals noted, respondents 
“claim indifference as to the course private schools would 
take” (Interv. Pet. App. 18b).

Respondents have asked the courts to require the Serv­
ice to adopt new guidelines and procedures which would 
deny or revoke any tax exemptions of schools with “insub­
stantial or nonexistent minority enrollments” in districts 
where public schools are undergoing desegregation, under 
any of three conditions: (1) if they “were established or 
expanded at or about the time the public school districts in 
which they are located or which they serve were desegre­
gating” ; (2) if they “have been determined in adversary 
judicial or administrative proceedings to be racially seg­
regated” ; or (3) if they “cannot demonstrate that they do 
not provide racially segregated educational opportunities 
for white children avoiding attendance in desegregating 
public school systems” (J.A. 40).

19 This is not, properly speaking, a challenge to Rev. Proc. 75-50, 
which expressly requires that, to be tax exempt, “ [a] school must 
show affirmatively, * * * that since the adoption, of [a racially non- 
discriminatory policy] it has operated as a bona fide manner in 
accordance therewith” (Interv. Pet. App. le). Respondents ap­
parently do not believe Rev. Proc. 75-50 is being enforced, though 
they allege no specific instance in which a tax exempt school has 
failed to implement its nondiscriminatory policy.



21
Respondents’ proposed policy is similar to proposals 

published for public comment by the Internal Revenue 
Service on August 22, 1978 (Interv. Pet. App. lf-13f) and 
February 9, 1979 (id. at lg-14g).20 These proposals were 
greeted with a barrage of more than 100,000 adverse writ­
ten comments (id. at 11a). Congress conducted hearings 
on the proposals, at which it heard additional criticism. 
Following the hearings, the House Appropriations Com­
mittee formally recommended that the Service defer adop­
tion of the proposals until after the regular tax writing 
committees could determine whether they properly inter­
preted the tax laws (H.R. Rep. No. 96-248, 96th Cong.,

20 The Internal Revenue Service proposals and respondents’ pro­
posals all are based on a presumption that private schools with few 
or no minority students formed or expanded in times of public 
school desegregation in their communities are- in violation of the 
public policy underlying Sections 170(c) (2) and 501(c) (3). On the 
basis of this common dement—characterized by the district court 
as a “preisumed-guilty-until-proven-mnocent approach” (Interv. Pet. 
App. 14a, quoting Second Supp. Mem. of Inte-rveno-r in Support of 
Motion to Dismiss a t 4)—the district court concluded that con­
gressional repudiation of the Internal Revenue Service proposals 
“is the strongest possible expression of the Congressional intent 
that Section 501(c) (3) of the Internal Revenue Code- is not suscep­
tible- of the construction which plaintiffs would place upon it in this 
case” (Interv. Pet. App. 14a.-15a).

The principal difference between respondents’ somewhat vague 
proposal and the- published proposals is in the- nature of the showing 
that a school must make once the presumption of ineligibility has 
attached. The Internal Revenue Service proposals focus on affirma­
tive outreach efforts to attract minority students (see Interv. Pet. 
App. 9f-10f (August 22, 1978 proposal); id. at l lg  (February 9, 
1979 proposal)), while respondents’ proposal focuses on whether 
the school has been established or expanded during desegregation 
or can be said to- provide- “racially segregated educational oppor­
tunities” for white- children avoiding desegregation in public schools 
(J.A. 40). I t  is not clear that schools with open admissions pol­
icies, e-ven with affirmative outreach efforts, would be- able to make 
respondents’ requested showing; indeed, the schools’ tax exempt 
status would depend on factors essentially outside their control. 
By way of contrast, Rev. Proc. 75-50 focuses on whether a school 
has adopted, announced, and implemented a “racially nondiscrimi- 
nato-ry policy” (Interv. Pet. App. le-).



22
1st Sess. 14-15 (1979)). By vote of both houses, Congress 
then barred implementation of the proposed guidelines 
through amendments to the Treasury’s appropriations.21 
These statutory restrictions have now expired, but until 
further proceedings take place, again subject to congres­
sional oversight, Rev. Proc. 75-50 remains in effect.

Respondents thus are in the posture of disappointed ob­
servers of the governmental process. Proposals substan­
tially similar to theirs have been formally proposed but, 
as a result of the mixed considerations that govern the 
fate of agency proposals subject to public comment and 
congressional oversight, have not been adopted. The ques­
tion naturally arises whether these individuals’ preference 
for alternative enforcement procedures under Section 
501 (c) (3) presents a justiciable controversy.

Under the holdings of this Court, a plaintiff must “ ‘al­
lege [] such a personal stake in the outcome of the con­
troversy’ as to warrant his invocation of federal-court ju­
risdiction and to justify exercise of the court’s remedial 
powers on his behalf” (Warth v. Seldin, 422 U.S. 490, 
498-499 (1975) (emphasis in original), quoting Baker v. 
Carr, 369 U.S. 186, 204 (1962)). The doctrine of stand­
ing has both constitutional and prudential aspects, recently 
summarized by this Court in Valley Forge Christian Col­
lege v. Americans United For Separation of Church And 
State, Inc., 454 U.S. 464, 471-476 (1982). As an “ir­
reducible minimum,” Article III requires two showings: 
(1) actual injury that (2) is traceable to the alleged il­
legal conduct of the defendant and is likely to be redressed 
by a favorable decision. These requirements ensure that 
the court can resolve the legal issues presented “not in the 
rarified atmosphere of a debating society, but in a con­
crete factual context conducive to a realistic appreciation 
of the consequences of judicial action” (id. at 472). They 
also reflect a “ [p] roper regard for the complex nature of 
our constitutional structure [, which] requires neither

21 These developments in Congress are described in more detail 
(pages 7-9, supra).



23
that the Judicial Branch shrink from a confrontation with 
the other two coequal branches of the Federal Govern­
ment nor that it hospitably accept for adjudication claims 
of constitutional violation by other branches of govern­
ment where the claimant has not suffered cognizable in­
jury” (id. at 474).

In addition to these constitutional requirements, this 
Court has also recognized prudential limitations on the 
ability of litigants to assert their claims in court. These 
limitations were summarized in Warth v. Seldin, supra, 
422 U.S. at 499: “Essentially, the standing question in 
such cases is whether the constitutional or statutory pro­
vision on which the ease rests properly can be understood 
as granting persons in the plaintiff’s position a right to 
judicial relief.” Particularly pertinent to this case is the 
admonition against permitting litigants to raise “ab­
stract questions of wide public significance,” (id. at 500) 
which are “pervasively shared and most appropriately ad­
dressed in the representative branches” (Valley Forge 
College, supra, 454 U.S. at 474-475). Under both consti­
tutional and prudential standards, respondents’ general­
ized allegations of injury fall short.

In Simon v. Eastern Ky. Welfare Rights Organization, 
426 U.S. 26 (1976), this Court faced a situation in many 
ways identical to this. There, as here, members of the 
public turned to the courts for reversal of Internal Reve­
nue Service rulings governing the grant of Section 501 
(c) (3) status to certain institutions, in that instance hos­
pitals. This Court held that the plaintiffs lacked standing 
to sue, even though they alleged an actual injury—a denial 
of service—by the institutions whose tax exemptions they 
were challenging. On its face, respondents’ complaint ap­
pears to provide even less basis for standing than there 
was in Eastern Kentucky. Respondents freely admit that 
they do not desire admission to the educational institutions 
whose tax exempt status they question (Br. in Opp. to 
Cert, at 8). It should follow, a fortiori, that they lack 
standing to bring this lawsuit. So the district court held.



24
Nonetheless, the court of appeals found that “Eastern 
Kentucky is not the line appropriately followed in the 
matter before us” (Interv. Pet. App. 18b), and reversed 
the district court’s dismissal of respondents’ complaint. 
It is therefore appropriate to consider in detail the al­
legations of injury in respondents’ complaint, and set 
them against the principles this Court has established 
for determining whether litigants have standing to sue.

II. RESPONDENTS’ ALLEGATIONS OF INJURY ES­
TABLISH NO DIRECT AND CONCRETE INJURY 
CAUSED BY THE GOVERNMENT'S ACTIONS 
AND REDRESSIBLE BY THE COURTS
A. Respondents’ Allegation That The Government Pro­

vides Tangible Aid To Racially Segregated Institu­
tions Establishes No “Injury In Fact,” But Only A 
Generalized Grievance With Government Conduct

Respondents’ first allegation of injury is that the grant 
of federal tax exempt status to racially segregated pri­
vate schools in districts undergoing desegregation in­
jures them in that it “constitutes tangible federal finan­
cial aid and other support for racially segregated educa­
tional institutions” (J.A. 38). On its face, this allegation 
fails to draw any connection between the allegedly wrong­
ful action and respondents’ own interests. In the course 
of the hearing below on the motions to dismiss, the dis­
trict court sought clarification from counsel as to the na­
ture of the injuries asserted by respondents. Counsel for 
respondents answered: “Their injury, Your Honor, is an 
infringement of their Constitutional right to be free of 
governmental support of private school discrimination 

*” (J-A. 62). As expressed by respondents’ brief in 
opposition to certiorari, “ [PJlaintiffs here have standing 
to seek an end to government aid to private discrimina­
tion because such government aid in and of itself injures 
them” (Br. in Opp. at 9).122

22 Even these explanations may overstate respondents’ actual 
allegations, which concern “schools which have insubstantial or



25
An allegation that third parties, who themselves have 

not injured respondents, are improperly receiving tax 
benefits does not identify a “distinct and palpable injury” 
to respondents sufficient to justify judicial relief (Glad­
stone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 
(1979)). This Court has never equated mere dissatisfac­
tion over government conduct with the “injury in fact” 
necessary to sustain Article III jurisdiction. This Court’s 
formulations to describe the requisite injury have been 
consistent and unambiguous: the plaintiff must have been 
“concretely affected” (Blum v. Yaretsky, No. 80-1952 
(June 25, 1982), slip op. 7); the injury must be “distinct 
and palpable” (Warth v. Seldin, supra, 422 U.S. at 501) ; 
“abstract injury is not enough” (O’Shea v. Littleton, 414 
U.S. 488, 494 (1974)) ; a plaintiff “must allege that he 
has been or will in fact be perceptibly harmed” (United 
States v. SCRAP, 412 U.S. 669, 688 (1973)). The injury 
need not, of course, be economic (id. at 686; Sierra Club 
v. Morton, 405 U.S. 727, 734 (1972)) ; aesthetic and en­
vironmental interests, for example, may support standing 
(SCRAP, supra, 412 U.S. at 686). On the other hand, as 
stated in Valley Forge College (454 U.S. at 482-483), 
“This Court repeatedly has rejected claims of standing 
predicated on ‘the right, possessed by every citizen, to re­
quire that the Government be administered according to law 
* * *’ ” (quoting Baker V. Carr, supra, 369 U.S. at 208, 
quoting Fairchild v. Hughes, 258 U.S. 126, 129 (1922)). 
It is not enough that litigants may be correct on the 
merits, or that they are intensely interested or experi­
enced in the problem (Sierra Club v. Morton, supra, 405 
U.S. at 727). The courts are not authorized to review 
legislative or executive decisions “at the behest of organi-

nonexislcnt minority enrollments and which are located in or serve 
desegregating public school districts” (J.A. 26). As the district 
court observed, there is no allegation that the schools whose tax 
exemptions respondents question “are actually discriminating in 
violation of the Constitution or federal law” (Interv. Pet. App. 
5a-6a). Nor would respondents’ requested relief be confined to 
schools that discriminate (J.A. 40-41).



26
zations or individuals who seek to do no more than vindi­
cate their own value preferences through the judicial 
process” {id. at 740). See also Flast v. Cohen, 392 U.S. 
83, 106 (1968).

Respondents in this case feel aggrieved because they do 
not believe the government is doing an adequate job of 
enforcing the laws; but as this Court has made clear, 
litigants have no legally cognizable right “to have the 
Government act in accordance with their views of the 
Constitution [or statutory requirements] * * *. * * * 
[Assertion of a right to a particular kind of government 
conduct, which the government has violated by acting dif­
ferently, cannot alone satisfy the requirements of Article 
III without draining those requirements of meaning” 
('Valley Forge College, supra, 454 U.S. at 483; see also 
Laird v. Tatum, 408 U.S. 1, 13 (1972)).

The court of appeals stressed the “denigration” respond­
ents suffer “as black parents and school children when 
their government graces with tax-exempt status educa­
tional institutions in their communities that treat mem­
bers of their race as persons of lesser worth” (Interv. Pet. 
App. 13b; see also id. at 34b). But this Court has re­
jected the notion that “psychological” discomfiture at gov­
ernment action, even if “phrased in constitutional terms,” 
establishes a basis for standing (Valley Forge College, 
supra, 454 U.S. a t 485-486). Were it otherwise, any 
would-be litigant could defeat the Article III limitations 
merely by alleging what cannot be disproved: that he 
suffers “denigration,” “stigma,” or other forms of psycho­
logical distress as a result of the challenged action.

With respect to their first allegation of injury, respond­
ents have a claim no stronger than that of other litigants 
who have been held to lack standing in cases before this 
Court. In Schlesinger v. Reservists Committee to Stop the 
War, 418 U.S. 208 (1974), plaintiffs sued to challenge the 
eligibility of members of Congress under the Incompati­
bility Clause, Art. I, § 6, C1.2, to serve as reservists in 
the military. Characterizing their interest as one of hav-



27

ing their government “act in conformity” with the Con­
stitution (418 U.S. at 217), this Court held that the plain­
tiffs lacked standing to sue. See also Ex parte Levitt, 
302 U.S. 633 (1937) (rejecting plaintiff’s standing to 
challenge constitutionality of the appointment and con­
firmation of a Justice of this Court under the Ineligibility 
Clause, Art. I, § 6, C1.2) ; United States v. Richard­
son, 418 U.S. 166 (1974) (rejecting taxpayer’s standing 
to challenge the alleged failure of the Central Intelligence 
Agency to comply with the Accounts Clause, Art. I ,  § 9, 
Cl. 7). Also closely analogous to this case is Valley Forge 
College, supra, in which plaintiffs challenged a transfer 
of federal property to a religious institution as a violation 
of the Establishment Clause.23 They claimed a “shared 
individuated right to a government that 'shall make no 
law respecting the establishment of religion’ ” (454 U.S. 
at 482). The court rejected their claim of standing, how­
ever, stating: “They fail to identify any personal in­
jury suffered by the plaintiffs as a consequence of the al­
leged constitutional error, other than the psychological 
consequence presumably produced by observation of con­
duct with which one disagrees. That is not an injury 
sufficient to confer standing under Article III, even though 
the disagreement is phrased in constitutional terms” {id. 
at 485-486; emphasis in original).

Respondents’ allegation that the government is not ade­
quately enforcing the Internal Revenue Code and the Con­
stitution, and that in consequence private discrimination 
is encouraged, is nothing more than a claim of their 
“shared individuated right” to a government that ade­
quately enforces the limits on tax exemptions to discrimi­
natory schools. This is indistinguishable from allegations 
of government failure to comply with the Incompatibility

23 Indeed, a conclusion that respondents lack standing in this 
case would not raise the special problems associated with restric­
tions on litigation under the Establishment Clause. See Valley 
Forge College, supra, 454 U.S. at 500-505, 507-510 (Brennan, J., 
dissenting) ; id. a t 515 (Stevens, J., dissenting).



28

Clause, the Accounts Clause, the Ineligibility Clause, the 
Establishment Clause, or any other constitutional or stat­
utory provision by persons not directly injured.124 “ [A] 
right to a particular kind of Government conduct, which 
the Government has violated by acting differently, can­
not alone satisfy the requirements of Article III without 
draining those requirements of meaning” (Valley Forge 
College, supra, 454 U.S. at 483).

Respondents’ standing cannot be justified, in the ab­
sence of actual injury, on the basis of the “issues [they] 
wish[] to have adjudicated” (Flast v. Cohen, supra, 392 
U.S. at 99). The “right of black citizens to insist that 
their government ‘steer clear’ of aiding schools in their 
communities that practice race discrimination,” as iden­
tified by the court of appeals (Interv. Pet. App. 24b-25b),

24 Respondents apparently believe that the rights they assert are 
not “undifferentiated right[s] common to all members of the pub­
lic” because' the Fourteenth Amendment is intended “to safeguard 
an identifiable segment of the citizenry : blacks, the same class to 
which respondents belong” (Br. in Opp. a t 10 n.10). There are 
three flaws in this argument. First, respondents do not allege that 
they have in fact been discriminated against by the private schools 
in question; a t best they seek to protect the rights of fellow mem­
bers of their race who might be (cf. Warth V. Seldin, supra, 422
U. S. a t 514). But injuries, like rights, pertain to individuals and 
not to classes or races (cf. Connecticut V. Teal, 457 U.S. 440, 453- 
456 (1982)). The fact that members of their race are specially 
protected from injury by the Fourteenth Amendment does not ac­
cord these respondents standing if they have not been injured 
{Moose Lodge No. 107 V. Irvis, 407 U.S. 163, 166 (1972)). Second, 
respondents are simply wrong if they assert that the benefits of 
equal protection—even of desegregated schooling—belong not to 
all citizens alike, but only to members of one race (see Washington
V. Seattle School District No. 1, No. 81-9 (June 30, 1982), slip op. 
14; Milliken V. Bradley, 418 U.S. 717, 793 (1974) (Marshall, J., 
dissenting)). Finally, the claims petitioners assert derive from the 
tax code, with its policy of granting exemptions only to' charitable 
organizations whose activities benefit the community {Bob Jones 
University V. United States, supra, slip op. 11-15). Respondents have 
no greater standing than any other members of the public to seek 
improved enforcement of this policy through the courts.



29
is indeed a fundamental concern of government {Bob 
Jones University v. United States, supra, slip op. 17-20, 
29), but “the centrality of that right in our contemporary 
(post-Civil War) constitutional order” (Interv. Pet. App. 
25b) does not create “injury in fact” where in fact there 
is no injury.

The fundamental character of the constitutional or stat­
utory provisions under which a plaintiff seeks to sue is 
irrelevant to whether he has established standing (Valley 
Forge College, supra, 454 U.S. at 484). Thus in Schles- 
inger V. Reservists Committee to Stop the War, supra, 
and in United States v. Richardson, supra, citizen claims 
to standing were rejected even though the constitutional 
guarantees the plaintiffs sought to put in issue were of 
manifest importance to the nation. Only recently, in 
Valley Forge College, supra, the plaintiffs contended that 
their “personal” right to a government that did not es­
tablish religion was more worthy of standing than “the 
generalized interest of all citizens in constitutional gov­
ernance” asserted in Schlesinger and Richardson. This 
Court observed, in words that apply to this case with 
equal force (454 U.S. at 484) :

Nor can Schlesinger and Richardson be distin­
guished on the ground that the Incompatibility and 
Accounts Clauses are in some way less “funda­
mental” than the Establishment Clause. Each estab­
lishes a norm of conduct which the Federal Govern­
ment is bound to honor—to no greater or lesser ex­
tent than any other inscribed in the Constitution. 
To the extent the Court of Appeals relied on a view 
of standing under which the Art. I ll  burdens dimin­
ish as the “importance” of the claim on the merits 
increases, we reject that notion. * * * [W]e know 
of no principled basis on which to create a hierarchy 
of constitutional values or a complementary “sliding 
scale” of standing which might permit respondents 
to invoke the judicial power of the United States.

See also Flast v. Cohen, supra, 392 U.S. at 129 n.18 
(Harlan, J., dissenting).



30

Indeed, this Court has rejected claims of standing based 
on interests similar to those of respondents. In O’Shea V. 
Littleton, supra, plaintiffs brought suit to challenge “a 
pattern and practice of intentional racial discrimination” 
by government officials (414 U.S. at 491) ; yet, lacking 
actual or threatened injury, they were held to have no 
standing to sue. Similarly, in Moose Lodge No. 107 v. 
Irvis, 407 U.S. 163 (1972), this Court denied standing to 
a black plaintiff to challenge the State’s grant of a liquor 
license to a private club with a discriminatory member­
ship policy, where he did not allege that he had applied 
for and been denied membership. Respondents’ right in 
this case to be free of “government aid to private dis­
crimination” (Br. in Opp. at 9) no more sustains stand­
ing than did the O’Shea plaintiffs’ right to be free from 
the government’s “pattern and practice of intentional ra­
cial discrimination” or the Moose Lodge plaintiff’s right 
to challenge government licensing of discriminatory estab­
lishments. See also Warth v. Seldin, supra (plaintiffs had 
no standing to challenge the “intentional exclusionary 
practices” of a municipal zoning board, though they 
claimed, among other things, that these practices deprived 
them “of the benefits of living in a racially and ethnically 
integrated community” (422 U.S. at 502, 512)) ; Valley 
Forge College, supra (rejecting the hypothetical example 
of standing based simply on the “personal right to a gov­
ernment that does not deny equal protection of the laws” 
(454 U.S. at 489 n.26). See also American Jewish Con­
gress v. Vance, 575 F.2d 939 (D.C. Cir. 1978).215

We submit that respondents’ first allegation of injury 
is insufficient to support standing to bring this action.

125 The court below appears to have adopted the position taken by 
Justice Douglas, dissenting in Moose Lodge, but consistently re­
jected by this Court'. Justice Douglas concluded that, since “Ameri­
can culture and history have been so plagued with racism and dis­
crimination,” the mere “brand” upon black citizens of discrimina­
tory practices constitutes “injury in fact,” whether or not they 
themselves suffered the discrimination (407 U.S. a t 184 n.4).



31

B. Respondents’ Allegation That Government Encour­
agement Of Racially Segregated Educational Op­
portunities Interferes With Public School Desegre­
gation Does Not Establish An Injury Fairly Trace­
able To Government Action And Re/ddressible In 
Court '

Respondents’ second allegation of injury likewise fails 
to establish a basis for standing under Article III. Re­
spondents allege that the grant of federal tax exemptions 
to racially segregated private schools located in or serving 
public school districts undergoing desegregation, “fosters 
and encourages the organization, operation and expansion 
of institutions providing racially segregated educational 
opportunities for white children avoiding attendance in 
desegregating public school districts and thereby inter­
feres with the efforts of federal courts, HEW and local 
school authorities to desegregate public school districts 
which have been operating racially dual school systems” 
(J.A. 39). Like respondents’ first allegation of injury, 
this statement fails to spell out any connection between 
the wrong allegedly perpetrated by the government and an 
injury to respondents. However, respondents have made 
clear that they represent school children attending public 
schools in districts undergoing desegregation, and it might 
be inferred that their alleged injury stems from the effect 
of the tax benefits on their opportunity to attend deseg­
regated public schools.

But respondents do not allege that the government en­
forcement policies they complain of have in fact resulted 
in a denial of their opportunity to attend desegregated 
public schools. In fact, counsel for respondents conceded 
in the district court that respondents’ children presently 
attend desegregated schools even under current Internal 
Revenue Service procedures (J.A. 62).26 They have,

126 In contrast, the individual plaintiffs in Eastern Kentucky, who 
described themselves as subsisting below the poverty line and suf-



32

therefore, alleged no “ ‘threatened or actual injury re­
sulting from the putatively illegal action’ ” (Warth v. 
Seldin, supra, 422 U.S. at 499, quoting Linda R.S. v. 
Richard D., 410 U.S. 614, 617 (1973)). Their second al­
legation of injury thus suffers all the deficiencies of the 
first.

Moreover, respondents fail to allege that any interfer­
ence with their opportunity to attend desegregated public 
schools “fairly can be traced to the challenged action” 
and “is likely to be redressed by a favorable decision” 
('Valley Forge College, supra, 454 U.S. at 472, quoting 
Eastern Kentucky, supra, 426 U.S. at 36, 41). This de­
ficiency is independently fatal to their claim. Respond­
ents do not allege that the tax exemptions in fact increase 
enrollment in segregated private schools and thus siphon 
white students away from the public schools. Nor do they 
allege that adoption of revised Internal Revenue Service 
procedures would decrease enrollment in the private schools 
in question, or cause them to change their practices. Indeed, 
respondents “claim indifference as to the course private 
schools would take” if their tax exemptions were lifted 
(Interv. Pet. App. 18b). Without such allegations there 
can be no causal link between the challenged conduct and 
the alleged injury, and no basis for supposing that a 
favorable decision would bring redress.

Under this Court’s decision in Eastern Kentucky, 
any allegation that respondents’ proposed change in 
Internal Revenue Service enforcement policies would 
cause private schools to welcome black students or to lose 
enrollment would be too speculative to support a claim of 
standing. In Eastern Kentucky, the plaintiffs sued to

fering from medical conditions requiring hospitalization, each al­
leged a specific occasion on which they or a family member sought 
and were denied service by particular hospitals, because of their 
indigency (426 U.S. a t 32-33).



33

enjoin the Treasury to withdraw a revenue ruling (Rev. 
Rul. 69-545, 1969-2 Cum. Bull. 117), which held that a 
non-profit hospital could qualify for recognition as a 
“charitable organization” under Sections 501(c) (3) and 
170(c) (2) even though it provided no more than emer­
gency room service to persons who could not pay for hos­
pitalization, and to require the Treasury to reinstate its 
earlier position (Rev. Rul. 56-185, 1956-1 Cum. Bull. 
202), which held that a hospital could not qualify unless 
it was operated to the extent of its financial ability for 
the benefit of those not able to pay. Plaintiffs alleged 
that in extending the benefits of tax exempt status to hos­
pitals not providing care other than emergency room 
service to indigents, the government was “encouraging” 
the hospitals to deny medical services to the plaintiffs, in 
contravention of the Internal Revenue Code, the Admin­
istrative Procedure Act, and the Constitution.

This Court held that the plaintiffs in Eastern Kentucky 
had no standing to sue. The Court recognized that the 
plaintiffs had an interest in obtaining access to hospital 
services and that some of the plaintiffs had sustained an 
injury to that interest at the hands of the hospitals. But 
the Court considered injury at the hands of the hospitals, 
which were not defendants, to be insufficient by itself to 
establish a case or controversy with the Treasury. The 
Court found it “purely speculative whether the denials of 
service specified in the complaint fairly can be traced 
to [defendants’] ‘encouragement’ or instead result from 
decisions made by the hospitals without regard to the tax 
implications” (426 U.S. at 42-43).27 Moreover, the Court 
found it “equally speculative whether the desired exercise 
of the court’s remedial powers in this suit would result in 
the availability to [plaintiffs] of such services” (id. at

27 The Court observed that where, as here', the alleged injury is 
indirect, it tends to be “ ‘substantially more difficult’ ” for the plain­
tiff to establish that his injury results from the defendant’s actions 
or that judicial relief could redress it (426 U.S. at 44-45, quoting 
Warth V. Seldin, supra, 422 U.S. at 505).



34
43). To the Court it seemed “just as plausible that the 
hospitals * would elect to forego favorable tax treat­
ment” (ibid.). The Court thus held that the plaintiffs 
had failed “ ‘to establish that, in fact, the asserted injury 
was the consequence of the defendants’ actions, or that 
prospective relief will remove the harm’ ” (id. at 44-45, 
quoting Warth v. Seldin, supra, 422 U.S. at 505). See 
also Linda R.S. v. Richard D., 410 U.S. 614 (1973); 
Arlington Heights v. Metropolitan Homing Development 
Corp., 429 U.S. 252, 260-264 (1977).

Respondents’ second allegation of injury is no less 
“speculative” than the plaintiffs’ claim in Eastern Ken­
tucky. As the district court held (Interv. Pet. App. 9a- 
10a) :

[I] t  is purely speculative that loss of these exemp­
tions would produce any net change in the desegre­
gation of a given school district (the second injury 
asserted by plaintiffs). It is by no means clear that 
these schools would not elect to forego the exemption 
in question rather than end any discriminatory con­
duct. It appears probable that many such schools 
have only limited dependence on these exemptions, 
indeed, even assuming substantial dependence, the 
schools might well choose to compensate by alternate 
means for financial benefits otherwise available from 
the exemptions. Clearly, under law firmly estab­
lished by Eastern Kentucky, supra, plaintiffs lack 
standing because there is a sufficient degree of spe­
culativeness that the relief requested will remedy the 
injury claimed by plaintiffs.

Indeed, respondents’ claim here is decidedly more spec­
ulative even than that in Eastern Kentucky. In order to 
affect the racial composition of the public schools respond­
ents’ children attend, the relief requested against the 
Treasury would have to influence not only the decisions 
of the private schools directly involved, but also the deci­
sions of scores of individual parents on where to send 
their children to school. Only if significant numbers of 
white parents respond to whatever decisions the private



35

schools may make by returning their children to public 
school would the desegregation of respondents’ school­
ing be enhanced. This additional link in the causal 
chain, depending as it does on the varied motivations and 
reactions of persons subject neither to court order nor to 
Treasury procedures, multiplies the uncertainties that led 
this Court to reject the claim in Eastern Kentucky,28 

Neither respondents nor the court of appeals have dis­
puted the district court’s conclusion that respondents’ 
claim is too speculative to support standing under the 
precedent of Eastern Kentucky?* Respondents merely 
argue, and the court of appeals agreed, “that Eastern 
Kentucky is the wrong frame for their case” (Interv. 
Pet. App. 18b). The reason Eastern Kentucky is consid­
ered the “wrong frame” apparently is that respondents 
and the court of appeals have chosen to rely not upon 
the allegation of interference with a right to attend de­
segregated public schools, but upon the first allegation— 
of the right to be free from government support for pri­
vate discrimination.80 We have already shown that that 
allegation does not provide a sufficient basis for standing.

88 The district court also found it “purely speculative whether, 
in the final analysis, any fewer schools would be granted tax ex­
emptions under plaintiffs’ system than under the current IRS sys­
tem” (Interv. Pet. App. 9a). In this respect, as well, respondents 
here have a weaker claim for standing than did the plaintiffs in 
Eastern Kentucky.

20 The court of appeals acknowledged: “Plaintiffs do not dispute 
that it is ‘speculative,’ within the Eastern Kentucky frame, whether 
any private school would welcome blacks in order to retain tax ex­
emption or would relinquish exemption to retain current practices” 
(Interv. Pet. App. 18b; footnotes deleted).

30 The court of appeals stated: “The very act by the IRS of ac­
cording tax exemption to a school that discriminates in their vicin­
ity causes immediate injury to them, plaintiffs maintain, and that 
is the only injury for which they seek redress” (Interv. Pet. App. 
14b; emphasis added).



36
III. UNDER THE PRUDENTIAL TESTS FOR STAND­

ING ESTABLISHED BY THIS COURT, NO PERSON 
NOT SEEKING A TAX BENEFIT MAY CHAL­
LENGE THE TAX TREATMENT OF OTHERS

We have demonstrated that the allegations of injury in 
respondents’ complaint do not establish existence of a 
“ ‘distinct and palpable injury’ * * * that is likely to be 
redressed if the requested relief is granted” (Gladstone, 
Realtors, supra, 441 U.S. at 100, quoting Warth v. Seldin, 
supra, 422 U.S. at 501). It is possible, however, to gen­
eralize: No person who is not himself seeking a tax bene­
fit has standing to challenge the Treasury’s treatment of 
the tax liabilities of others. Any claim that a person is 
injured by private conduct induced or encouraged by con­
siderations of tax treatment will be too “speculative” for 
the reasons discussed in Eastern Kentucky, while any 
claim of “taxpayer standing” by virtue of a supposed in­
crease in one’s tax liabilities as a result of the tax bene­
fits afforded to another will be rejected for the reasons 
set out in Valley Forge College and Frothingham v. Mel­
lon, 262 U.S. 447 (1923). As Justice Stewart said in 
Eastern Kentucky, “I cannot now imagine a case, at least 
outside the First Amendment area, where a person whose 
own tax liability was not affected ever could have stand­
ing to litigate the federal tax liability of someone else” 
(426 U.S. at 46) (concurring opinion).

The same conclusion may be reached under this Court’s 
rulings on the prudential aspects of standing, where the 
question must be posed: “whether the constitutional or 
statutory provision on which the claim rests properly can 
be understood as granting persons in the plaintiff’s posi­
tion a right to judicial relief” (Warth v. Seldin, supra, 
422 U.S, at 500).31 Thus, even if respondents could allege 
a concrete injury (as in Eastern Kentucky), and even if

31 Professor David Currie has described this statement as “the 
soundest sentence the Supreme Court has uttered on this trouble­
some subject within human memory” (Currie', Misunderstanding 
Standing, 1981 Sup. Ct. Rev. 41, 42).



37
they could (contrary to Eastern Kentucky) persuade a 
court to accept their “attenuated line of causation” from 
Treasury policy, through the independent decisions of 
schools and parents, to their alleged injury (see United 
States v. SCRAP, supra, 412 U.S. at 688), their standing 
would still be questionable because there is no provision, 
either of constitutional or of statutory law, that can be 
understood as granting them a right to litigate the tax 
liabilities of other persons.83

This is not to say that the Internal Revenue Service’s 
administration of the tax laws is never subject to judicial 
reexamination.®3 Not only may taxpayers obtain review 
of decisions directly bearing upon their own tax liability 
(e.g., Bob Jones University v. United States, supra), but 
they may also challenge the tax treatment of others 
where it is relevant to their own claim for consistent 
treatment {e.g., Regan v. Taxation With Representation, 
No. 81-2338 (May 23, 1983) (organization that was 
denied tax exempt status because of substantial lobbying 
activity challenged, under Equal Protection Clause, the 
right of veterans’ organizations to tax exempt status not­
withstanding those organizations’ substantial lobbying) ; 
see also United States v. Maryland, Savings-Share Insur­
ance Co., 400 U.S. 4 (1970)). But suits by persons whose 
own tax liability is not affected “would operate to dis­
turb the whole revenue system of the Government and 
affect the revenues which arise therefrom” (Louisiana v. 
McAdoo, 234 U.S. 627, 632 (1914)).

30 The district court’s conclusion that Internal Revenue Service 
guidelines and procedures are “nonreviewable” (Interv. Pet. App. 
lla-13a), draws upon these same considerations. Because the legal­
ity of the Service’s guidelines, procedures, and other interpreta­
tions of law are judically reviewable at the behest of an aggrieved 
person seeking a tax benefit, however, the point is better under­
stood as one of standing than of nonreviewability.

33 But cf. Valley Forge College, supra, 454 U.S. at 489 (the “as­
sumption that if respondents have no standing to sue, no one would 
have standing, is not a reason to find standing” (quoting Schlesin- 
ger V. Reservists Committee to Stop the War, supra, 418 U.S. at 
227)).



38
This Court has noted that “it is * * * open to serious 

question whether the Framers of the Constitution ever 
imagined that general directives to the Congress or the 
Executive would be subject to enforcement by an individ­
ual citizen” (United States v. Richardson, swpra, 418 
U.S. at 178 n .l l) . Important though it is to each citizen 
that the government fairly, conscientiously, and efficiently 
enforce the laws, citizens have never been recognized as 
having standing to challenge such enforcement in court, 
as it applies to others. For example, this Court has held 
that “a private citizen lacks a judicially cognizable inter­
est in the prosecution or nonprosecution of another” 
{Linda R.S. v. Richard D., supra, 410 U.S. at 619). 
Thus, in Linda R.S., the plaintiff was denied standing to 
challenge the constitutionality of a state criminal statute 
limiting mandatory child support to legitimate children, 
even though she might receive a clear economic benefit if 
the requirement were enforced on behalf of illegitimate 
children as well.84

The principle against third-party interference with the 
government’s enforcement policies is especially compelling 
in the “unique context of a challenge to a criminal stat­
ute” (410 U.S. at 617), where the intrusive and coercive 
power of the state is at its height. It is applicable as well 
to other areas of law enforcement where would-be plain­
tiffs alleging no injury may seek to have the courts act 
as “virtually continuing monitors of the wisdom and 
soundness of Executive action” {Laird v. Tatum, 408 
U.S. 1, 15 (1972)). As this Court has observed,
“ [S]uch a role is appropriate for the Congress acting 
through its committees and the ‘power of the purse’; it is 
not the role of the judiciary, absent actual present or im­
mediately threatened injury resulting from unlawful gov­
ernmental action” {ibid.).95 The principle is particularly

34 Cf. Orr. V. Orr, 440 U.S. 268 (1979) (husband has standing to 
challenge state marital law granting alimony rights only to female 
former spouses).

86 Some courts have entertained suits challenging the “abdica­
tion” of an agency’s duty to comply with specific statutory enforce-



39

applicable to the administration of the tax laws, where 
the twin elements of coercive authority and complex ad­
ministrative considerations are evident. As Justice Bren­
nan has stated, “Courts must be circumspect in dealing 
with the taxing power in order to avoid unnecessary in­
trusion into the functions of the legislative and executive 
branches” (Valley Forge College, supra, 454 U.S. at 499 
(dissenting opinion)). See also National Muffler Dealers 
Ass’n v. United States, 440 U.S. 472, 477 (1979); 
United States v. Cornell, 389 U.S. 299, 306-307 (1967) ; 
Louisiana v. McAdoo, supra.

Congress has delegated “the administration and en­
forcement of” the tax laws to the Secretary and the Com­
missioner (26 U.S.C. 7801(a)), including the power to 
“prescribe all needful rules and regulations for the en­
forcement of” the tax laws (26 U.S.C. 7805(a)). It has 
created a Joint Committee on Taxation to investigate the 
administration, operations and effects of the tax system 
(26 U.S.C. 8001-8023). Congress has also established 
precisely defined channels for the adjudication of tax dis­
putes—by proceedings in the Tax Court (26 U.S.C. (& 
Supp. V) 6212, 6213), by refund or collection actions in 
the district courts or the Claims Court (26 U.S.C. (& 
Supp. V) 6532, 7402, 7405, 7422; 28 U.S.C. (& Supp. 
V) 1346, 1491), or—most directly to the point—by ex­
pressly limited declaratory judgment actions, e.g., by an 
organization seeking recognition as a tax exempt organ­
ization under Section 501(c)(3) (26 U.S.C. (& Supp. 
V) 7428). Otherwise, Congress has prohibited “any per­
son, whether or not such person is the person against 
whom such tax was assessed,” from maintaining a “suit 
for the purpose of restraining the assessment or collection 
of any tax” (26 U.S.C. (Supp. V) 7421(a), the Anti- 
Injunction Act), and has barred declaratory relief in all

ment procedures (e.g., Adams V. Richardson, 480 F.2d 1159, 1162 
(D.C. Cir. 1973) (en banc)). Here, the Congress has left enforce­
ment procedures under Sections 170 (a) and 501(c) (3) to the dis­
cretion of the Commissioner and the Secretary, subject to its own 
oversight.



40
actions “with respect to Federal taxes” (28 U.S.C. (Supp. 
V) 2201, the Declaratory Judgment Act).3® See, e.g., 
Bob Jones University v. Simon, 416 U.S. 725 (1974) ; 
Enochs v. Williams Packing Co., 370 U.S. 1 (1962) ; 
Flora v. United States, 362 U.S. 145 (I960).8'7 These 
provisions reflect a deliberate judgment that, in the tax 
area, the right to invoke the judicial power must be 
closely circumscribed. Congress has shown no intention 
to create a right to challenge the vigor of the govern­
ment’s enforcement of the tax code.'38

Thus, the district court properly refused to become “a 
‘shadow commissioner of Internal Revenue’ to run the 
administration of tax assessments to private schools in 
the United States” (Interv. Pet. App. 12a). Contrary to 
the view of the court of appeals (Interv. Pet, App. 35b), 
the relief respondents seek necessarily would entail ex­
tensive interference in the process of tax administration.8®

36 The only relevant exception to the prohibition of declaratory 
relief “with respect to federal taxes” is the provision permitting an 
organization to’ seek recognition as a tax exempt organization un­
der 26 U.S.C. (& Sup-p. V) 501(c)(3) (26 U.S.C. (& Supp. V) 
7428). See also 26 U.S.C. (& Supp. V) 7476, 7477, and 7478.

37 Whether respondents’ action would be statutorily barred under 
these provisions was not decided by the courts below, and will be 
subject to litigation on remand should this Court conclude respond­
ents have standing.

38 The prudential component of standing can be understood as an 
inquiry into legislative or constitutional intent to make a particular 
grievance judicially cognizable. As Justice Brennan has suggested, 
to adjudge standing requires “determining whether the Constitu­
tion or a statute defines injury, and creates a cause of action for 
redress of that injury, in precisely the circumstance presented to 
the Court” (Valley Forge College, supra, 454 U.S. a t 492 (dissent­
ing opinion)). Thus, Congress has the power—within the limits of 
Article III—to make judicially cognizable a claim that otherwise 
would be barred by the prudential limits on standing. Gladstone, 
Realtors v. Village of Bellwood, supra, 441 U.S. a t 100. Here, the 
total absence of any provision for third party challenges to the tax 
treatment of others demonstrates the non justiciability of respond­
ents’ claim under the prudential standard.

39 The court of appeals believed that “cases of this nature, ulti­
mately raising non-frivolous constitutional objections to IBS action,



41

Respondents do not challenge specific exemptions of spe­
cific schools. Rather, they seek revisions of the guidelines

are ‘few and far between’; they do not threaten large interference 
by ‘public interest’ litigants with the administrative process of 
collecting taxes” (Interv. Pet. App. 32b n.52). The number of 
“public interest” actions by nontaxpayers against the Treasury has 
in fact been quite substantial, however, and the threat that they 
pose to the expeditious collection of taxes should riot be under­
estimated. See, e.g., United, States V, American Friends Service 
Committee, 419 U.S. 7 (1974) (Anti-Injunction Act barred suit by 
Quaker organization to enjoin enforcement of withholding tax on 
its employees); Lugo V. Miller, 640 F.2d 823 (6th Cir. 1981) (in­
digent plaintiffs held to lack standing to obtain revocation of Rev. 
Rul. 69-545 and to compel revocation of hospitals’ tax exemptions) ; 
Junior Chamber of Commerce v. United States Jaycees, 495 F.2d 
883 (10th Cir.), cert, denied, 419 U.S. 1026 (1974) (sovereign 
immunity barred suit to compel revocation of organization’s tax 
exemption on ground that it excluded women from membership); 
Cattle Feeders Tax Committee V. Shultz, 504 F.2d 462 (10th Cir. 
1974) (Anti-Injunction Act barred suit to enjoin enforcement of 
Revenue Ruling relating to deductibility of prepaid cattle feed) ; 
American Society of Travel Agents, Inc. V. Blumenthal, 566 F.2d 
145 (D.C. Cir. 1977), cert, denied, 435 U.S. 947 (1978) (travel 
agencies lacked standing to compel revocation of exempt status of 
other organizations operating travel programs); Tax Analysts & 
Advocates V. Blumenthal, 566 F.2d 130 (D.C. Cir. 1977), cert, de­
nied, 434 U.S. 1086 (1978) (organization lacked standing to seek 
revocation of rulings relating to the foreign tax credit allowed 
international oil companies); Educo, Inc. v. Alexander, 557 F.2d 
617 (7th Cir. 1977) (Anti-Injunction Act and Declaratory Judg­
ment Act barred suit by organization for review of Revenue Ruling 
relating to status of educational benefit plan for corporate em­
ployees) ; Investment Annuity, Inc. V. Blumenthal, 609 F.2d 1 (D.C. 
Cir. 1979), cert, denied, 446 U.S. 981 (1980) (Anti-Injunction Act 
and Declaratory Judgment Act barred suit by marketers of invest­
ment annuities for review of Revenue Ruling holding that pur­
chasers of such annuities did not qualify for favorable tax treat­
ment) ; Abortion Rights Mobilization, Inc. V. Regan, 552 F. Supp. 
364 (S.D. N.Y. 1982) (abortion rights advocates held to have 
standing to challenge exemptions of religious organizations alleged 
to engage in efforts to change abortion laws); Common Cause V. 
Connally, Civ. No. 1337-71 (D.D.C.) (suit to enjoin enforcement 
of Treasury Regulations relating to depreciation guidelines dis­
missed as moot by agreement).



42

and procedures used by the Treasury to determine the tax 
status of thousands of private schools (see J.A. 22-24, 
40-41).40 To adjudicate their claims, a broad-scale in­
quiry into the enforcement practices of the Internal Reve­
nue Service, as well as into the policies and practices of 
the schools in question, would be required. As the district 
court observed, “ [i]n order to assess the viability of IRS 
* * * enforcement efforts, this Court would be required 
to analyze results from a significant number of schools. 
Even if, as plaintiffs contend, the Court need examine 
only a ‘representative number’ of schools to gauge com­
pliance, the effort would be unfathomable” (Interv. Pet. 
App. 12a). Such a judicial undertaking cannot be re­
quired, or justified, on behalf of litigants whose own tax 
liability would be unaffected by the guidelines and pro­
cedures they seek to revise.

This is not to suggest, of course, that the Secretary and 
the Commissioner are unaccountable in regard to the 
adoption or enforcement of administrative guidelines and 
procedures. The role respondents would have the court 
assume, “as virtually continuing monitors of the wisdom 
and soundness of Executive action,” Laird v. Tatum, 
supra, 408 U.S. at 15, belongs to Congress, which has the 
power and duty to oversee the operation, administration, 
and effects of the internal revenue system (see Sections 
8021 through 8023 of the Code), and to the President, 
who, along with the Treasury officials, is required to 
“take Care that the Laws be faithfully executed” (Art. 
II, § 3 ) . Absent an assertion of concrete and remediable 
injury directly attributable to unlawful government ac­
tion, the judiciary should not assume the “amorphous 
[task of] general supervision of the operations of gov­
ernment * * *” (United States v. Richardson, 418 U.S. 
166, 192 (1974) (Powell, J., concurring) ; Schlesinger

40 The Internal Revenue Service advises that there1 are approxi­
mately 20,000 private schools in the United States currently recog­
nized as, or claiming to be, tax-exempt under Section 501(c) (3).



43
V. Reservists Committee to Stop the War, supra, 418 
U.S. at 217-218).

The questions of revenue enforcement policy raised by 
respondents’ suit are properly a matter for public debate. 
By that means, the views of interested persons and or­
ganizations may be ventilated and taken into account. As 
described (pages 6-9, supra), such a debate has occurred: 
the Executive branch has proposed procedures similar to 
those advocated by respondents; the public has responded at 
public hearings and with more than 100,000 written com­
ments; congressional committees have conducted hearings 
and expressed their views; the “power of the purse” has 
been used to block proposals unacceptable to Congress. 
See Bob Jones University v. United States, supra, slip op. 
24-27. Respondents simply are dissatisfied with the out­
come of the debate. Nontaxpayer suits of this type thus 
present a classic example of cases raising “questions of 
broad social import where no individual rights would be 
vindicated * * *” (Gladstone, Realtors v. Village of Bell- 
wood, supra, 441 U.S. at 99-100). Nontaxpayer litigants 
are not permitted under the decisions of this Court “to 
oversee the conduct of the National Government by means 
of lawsuits in federal courts” (United States v. Richard­
son, supra, 418 U.S. at 179; see id. at 188-192 (Powell, «J., 
concurring)). Thus, even apart from the specific deficien­
cies in respondents’ complaint, respondents do not have a 
judicially cognizable right, as third parties whose own tax 
liability is unaffected, to litigate the adequacy of Treas­
ury’s enforcement procedures under Sections 170(a) and 
501(c) (3) of the Code.

IV. THE COURT OF APPEALS’ HOLDING IS NOT 
SUPPORTED BY THIS COURT’S JUDGMENTS IN 
NORWOOD, GILMORE, OR GREEN

The court of appeals made no attempt to explain or 
distinguish this Court’s rulings addressing the standing 
doctrine. Rather, the court purported to identify “two 
divergent lines of Supreme Court decision” and then 
“select * * * the one we believe best fits the case before



44

us” (Interv. Pet. App. 16b). The court frankly recog­
nized that respondents’ claim would be insufficient under 
the precedent of Eastern Kentucky. But “ [i]n view of 
the centrality of [the right asserted by respondents] in 
our contemporary (post-Civil War) constitutional order,” 
the court professed itself “unable to conclude that Eastern 
Kentucky speaks to the issue before us” {id. at 25b).

Eastern Kentucky cannot be distinguished, however, on 
the ground that the substantive issues the plaintiffs sought 
to raise in that case lacked the “centrality” of the issue 
respondents would litigate here. As discussed above 
{supra pages 28-29), the requirements of standing do not 
depend on the merits or nature of the underlying issue 
tendered by a plaintiff; nor are they a matter of choice 
or discretion with the court. “To the extent the Court of 
Appeals relied on a view of standing under which the 
Art. I ll burdens diminish as the ‘importance’ of the claim 
on the merits increases,” this Court has “reject[ed] that 
notion” {Valley Forge College, supra, 454 U.S. at 484). 
In any event, this Court has rejected claims of standing 
based on precisely the same fundamental right asserted 
here—the right to be free from governmental assistance 
to or approval of private racial discrimination. See 
Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 163.

Moreover, contrary to the court of appeals, the relevant 
decisions of this Court are not “divergent” (Interv. Pet. 
App. 16b), and do not “point [] in opposite directions” 
{id. at 15b-16b). Rather than adhering to this Court’s 
teaching on standing, the court of appeals turned to three 
decisions, two of which did not even address the issue of 
standing: Coit v. Green, 404 U.S. 997 (1971); Norwood 
v. Harrison, 413 U.S. 455 (1973) ; and Gilmore v. City 
of Montgomery, 417 U.S. 556 (1974). None of those 
decisions warrants, much less requires, the court’s hold­
ing that respondents have standing.

In Norwood v. Harrison, supra, this Court struck down 
a program administered by the State of Mississippi under 
which students in private schools were permitted to bor-



45
row textbooks from the State without regard to the 
racially discriminatory policies of the students’ schools. 
The complaint, brought by parents of students who at­
tended public schools in Tunica County, Mississippi, al­
leged that specified private schools whose students par­
ticipated in the school textbook program excluded black 
students on the basis of race (413 U.S. at 457, 467 n.9). 
See United States v. Tunica County School District, 323 
F. Supp. 1019 (N.D. Miss. 1970), aff’d, 440 F.2d 337 
(5th Cir. 1971). The district court, in ruling that the 
textbook program was constitutional, sustained the plain­
tiffs’ standing in one sentence (Norwood v. Harrison, 340 
F. Supp. 1003, 1007 (N.D. Miss. 1972)), and, as the 
court of appeals here pointed out, “the issue [of stand­
ing] was not pursued on appeal” (Interv. Pet. App. 24b). 
This Court reversed on the merits. As the Court later 
explained in Gilmore v. City of Montgomery, supra, 417 
U.S. at 570-571 n.10: “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.” Thus, plaintiffs’ standing in Norwood was by 
virtue of their position as successful litigants in a related 
desegregation suit; their injury was the State’s inter­
ference with their rights under the decree.

Similarly, Gilmore v. City of Montgomery, supra, was 
an outgrowth of an earlier proceeding where there was 
no question of the plaintiffs’ standing. A decree secured 
by the Gilmore plaintiffs in that earlier proceeding struck 
down a city ordinance relegating blacks to separate parks 
and recreational facilities, and mandated the desegrega­
tion of those facilities. Plaintiffs’ complaint for supple­
mental relief was entertained to determine whether the 
city’s policy of allocating recreational facilities to segre­
gated private schools had the effect of creating “ ‘enclaves 
of segregation’ ” that denied the plaintiffs equal access to 
the city’s parks and recreational facilities, and thereby 
impaired the efficacy of the prior decree (417 U.S. at 566- 
568). This Court’s discussion of the standing of those



46
plaintiffs—its only observation upon standing in the cases 
relied on by the court of appeals—shows that the rules 
of standing are not relaxed to accommodate claims of 
unlawful government aid to racial discrimination. While 
the Court affirmed the district court’s order directing the 
city not to permit such schools to have “exclusive” use 
of a city recreational facility, the Court was “not pre­
pared at this juncture and on this record, to assume the 
standing of these plaintiffs to claim relief against certain 
nonexclusive uses by private school groups” {id. at 570 
n.10).41 As the Court explained {id. at 570-571 n.10; 
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, the plaintiffs were parties to an action de­
segregating the city parks and recreational facilities. 
Without a properly developed record, it is not clear 
that every nonexclusive use of city facilities by 
school groups, unlike their exclusive use, would re­
sult in cognizable injury to these plaintiffs. The 
District Court does not have carte blanche authority 
to administer city facilities simply because there is 
past or present discrimination. The usual 'prudential 
tenets limiting the exercise of judicial power must 
be observed in this case as in any other.

Thus, in the foregoing cases, as elsewhere, the Court 
adhered to “the basic principle that to invoke judicial 
power the claimant must have ‘a personal stake in the 
outcome,’ * * *, or ‘a particular, concrete injury’ or ‘a 
direct injury,’ * * * in short, something more than ‘gen­
eralized grievances’ * * *” (United States v. Richardson, 
supra, 418 U.S. at 179-180; citations omitted).

41 The offense supporting standing in Gilmore was not, as the 
court of appeals implied (Interv. Pet. App. 21b), government aid 
to segregated schools, but rather governmental exclusion of black 
persons from public parks and recreational facilities. That is why 
non-exclusive use by segregated schools might not “result in cog­
nizable injury” to the plaintiffs (417 U.S. at 570-571 n.10).



47
The final decision relied upon by the court of appeals 

was this Court’s summary affirmance without opinion in 
Coit v. Green, supra. Although similar to this case on its 
facts,42 Green cannot be understood as establishing a 
precedent on the issue of standing. The Green plaintiffs’ 
standing was not addressed in the district court opinion 
affirmed by this Court, See Green v. Connally, 330 F. 
Supp. 1150 (D.D.C. 1971).43 In this Court, the plaintiffs’ 
standing was addressed only by an intervenor, in an 
ambiguous initial question in his Jurisdictional State­
ment.44 The issue was not addressed in the body of the 
intervenor’s brief, nor in the Motions to Dismiss or Affirm 
filed by the plaintiffs and the government. See Jurisdic­
tional Statement, Motion to Dismiss, and Motion to Dis­
miss or Affirm, in Coit v. Green (No. 71-425, 1971 Term). 
In these circumstances, this Court can hardly be thought 
to have ruled on the standing issue. “ [T]he precedential 
effect of a summary affirmance can extend no farther than 
The precise issues presented and necessarily decided by 
those actions’ ” (Illinois State Board of Elections v. Social-

42 In Green, however, a t the time it entered a preliminary in­
junction the district court found that the plaintiffs faced the 
immediate prospect of losing their right to a desegregated educa­
tion (309 F. Supp. a t 1138-1139). Here, respondents’ children con- 
cededly are1 attending desegregated schools (J.A. 62).

43 The plaintiffs’ standing had been addressed by the district 
court on motion for preliminary injunction. See Green v. Kennedy, 
309 F. Supp. 1127, 1132 (D.D.C.), appeal dismissed sub nom. 
Cannon V. Green, 398 U.S. 956 (1970).

44 The intervenor’s statement of questions presented includes 
whether plaintiffs had “constitutional standing” to bring the action 
(J.S. 11). The only other reference to “standing” in his brief ap­
pears in his discussion of whether the district court judgment 
rested on constitutional rather than statutory grounds—an issue 
relevant to the intervenor’s right to take a direct appeal to this 
Court under 28 U.S.C. 1253 (J.S. 5). This was the issue contested 
by the plaintiff (Mot. to Dis. or Aff. 8-11). I t  is probable, there­
fore, that the intervenor’s question regarding plaintiffs’ “consti­
tutional standing” refers to the issue of appellate jurisdiction under 
Section 1253, and not: to Article III standing.



48
ist Workers Party, 440 U.S. 173, 182 (1979), quoting 
Mandel v. Bradley, 432 U.S. 173, 176 (1977)). This 
Court’s summary affirmance in Green, therefore, should 
“not * * * be read as a renunciation * * * of doctrines 
previously announced in our opinions after full argu­
ment” (Fusari V. Steinberg, 419 U.S. 379, 392 (1975) 
(Burger, C.J., concurring)), nor should it be considered 
a reason for declining to follow Eastern Kentucky, Valley 
Forge College, and other later opinions of this Court 
explicating the doctrine of standing.

A second, independent reason not to treat this Court’s 
affirmance of Green as a basis for finding standing in 
this case is that in Green, the government and the plain­
tiffs were in agreement; the appeal was taken by an in- 
tervenor whose own standing was seriously in doubt. For 
this reason, as this Court later stated, “the Court’s affirm­
ance in Green lacks the precedential weight of a case in­
volving a truly adversary controversy” (Bob Jones Uni­
versity v. Simon, 416 U.S. 725, 740 n .ll  (1974)) >

It is evident, therefore, that the Norwood, Gilmore, and 
Green decisions do not justify the court of appeals’ de­
parture from Eastern Kentucky and the other standing 
decisions of this Court.

45 The court, of appeals, though acknowledging this Court’s char­
acterization of Green in Bob Jones University v. Simon, supra 
(Interv. Pet. App. 23b n.29), took the opposite view that Green 
was “ [a] sharp[ly] adversary contest” (id. a t 5b).



49

CONCLUSION
The judgment of the court of appeals should be re­

versed and the injunctive order of the court of appeals 
should be vacated.

Respectfully submitted.

Septem ber  1983

R e x  E . L e e
Solicitor General

Gle n n  L . A r c h er , J r .
Assistant Attorney General

L aw ren ce G. Wa lla c e  
Deputy Solicitor General

Mic h a e l  W. McC o n n ell 
Assistant to the Solicitor General

E r n est  J. Brown 
R obert S. P om erance 

Attorneys

☆  U . S . GOVERNMENT PRINTING OFFICE; 1 9 8 3 4 1 6 6 8 5  9 2