Allen v. Wright Brief for Respondents

    Nos. 81-757 and 81-970

In  T he

imprott? (tort at %  Ittttefr States
October Term , 1983

W. Wayne Allen,
Petitioner,v.

Inez Wright, et al.

Donald T. Regan, Secretary of the Treasury, et al,
Petitioners,v.

Inez W right, et al.

On Writs of Certiorari to the United States 
Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS

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

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

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

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Respondents

* Counsel of Record

W it s o n  - Ep e s  P r in t in g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n . D .C . 2 0 0 0 1



QUESTION PRESENTED

Are black children who attend public schools in desegre­
gating districts injured, within the meaning of Article 
III, by the federal government’s grant of tangible finan­
cial aid (tax exemptions and tax-deductibility of con­
tributions) to racially discriminatory private schools 
created or expanded at the time of public school desegre­
gation in their communities?

(i)





TABLE OF CONTENTS

Counterstatement of the Case ...................... -.....................  1

Background _________ _____ -.................... -..........—- 2
The Present Proceedings------ ------ --------- --------------  4

Summary of Argument ___ ______________ ____ -..............  12

Argument

Page

Black Schoolchildren Attending Desegregating 
Public Schools Have Standing To Complain of 
Tangible Government Aid to Racially Discrimina­
tory Private Schools Formed or Expanded in Their 
Communities at the Time of the Initiation of Pub­
lic School Desegregation Because Such Government 
Aid Infringes Their Personal Right to Equal Edu­
cational Opportunity ________ ____ ____ ___ _____  IB
A. The Government’s Grant of Tangible Financial 

Aid to Private, Racially Discriminatory Schools 
Formed or Expanded in Respondents’ Com­
munities at the Time of the Initiation of Public 
School Desegregation Infringes Respondents’ 
Personal Rights to Equal Educational Oppor­
tunity .......... ............................... .............................. 14

B. The Two Cases Principally Relied on by Peti­
tioners, Eastern Kentucky and Valley Forge,
Do Not Control This Case ------------------------------ 21

C. Petitioners’ Subsidiary Standing Arguments
Are Erroneous ...... ......................................... ...... 24

D. The Government’s Concession That the Plain­
tiffs in Norwood Had Standing Is Tantamount 
to a Concession That Respondents Here Have 
Standing As W ell......... ............ ................. .......—- 26

Conclusion .................... —.... ........ ..........— ........- ....... -  BO

(iii)



IV

TABLE OF AUTHORITIES
CASES: Page

Abington School District V. Schempp, 374 U.S. 203
(1963) ..... ......................................... .......... ......... . 24

Andrus V. Charlestone Stone Products Co., 436
U.S. 604 (1978) .............................   20

Atkins V. State Board of Education, 418 F.2d 874
(4th Cir. 1969) _______ _______ ________________  28

Bailey V. Patterson, 323 F.2d 201 (5th Cir. 1963), 
cert, denied sub nom. Jackson V. Bailey, 376 U.S.
910 (1964) ........        27

Baker V. Carr, 369 U.S. 186 (1962) ...................... . 21
Bob Jones University V. Simon, 416 U.S. 725

(1974) .............................................. .................. . 20
Bob Jones University V. United States, 103 S. Ct.

2017 (1983) ______     2 ,13,18,20,21,26
Bolling V. Sharpe, 347 U.S. 497 (1954 )..................  2, 17
Brown V. Board of Education, 347 U.S. 483

(1954) ............................ ............... ...2, 3, 18, 19, 20, 22, 26
Brown v. Board of Education, 84 F.R.D. 383 (D.

Kan. 1979) _________ _________ _______________  5, 29
Brumfield V. Dodd, 405 F. Supp. 338 (E.D. La.

1975) ______________ ______ ________________ ___ _ 8,16
Carey v. Piphus, 435 U.S. 247 (1978) ...................... 21
Coffey v. State Educational Finance Commission,

296 F. Supp. 1389 (S.D. Miss. 1969) .......... ..........  16
Coit V. Green, 404 U.S. 997 (1971) ..........................  4, 20
Cooper V. Aaron, 358 U.S. 1 (1958) _____________ 3, 19
Faubus v. Aaron, 361 U.S. 197 (1959) _____ _____ 18
Franks V. Bowman Transp. Co., 424 U.S. 747

(1976) ______ _____________ _________________  26
Gilmore v. City of Montgomery, 417 U.S. 556

(1974) .... ........................................ ................ 11,19, 27, 28
Gilmore V. City of Montgomery, 337 F. Supp. 22 

(M.D. Ala. 1972), rev’d in part, 473 F.2d 832
(5th Cir. 1973), afi’d, 417 U.S. 556 (1974) .....  6, 16

Gladstone, Realtors V. Village of Bellwood, 441
U.S. 91 (1979) _____ _____________ _____ ___ 10,13, 21

Graham v. Evangeline Parish School Board, 484 
F.2d 649 (5th Cir. 1973), cert, denied, 416 U.S.
970 (1974) ......... .......................................... ...........  15



V

Green V. Connally, 380 F. Supp. 1150 (D.D.C.), 
aff’d sub nom. Coit V. Green, 404 U.S. 997
(1971) .......................................................-----...........passim

Green V. Kennedy, 309 F. Supp. 1127 (D.D.C.), 
appeal dismissed sub nom. Cannon V. Green, 398
U. S. 956 (1970) ...... .......- ------- --------- ----------3,17, 20

Griffin V. County School Board of Prince Edward
County, 377 U.S, 218 (1964) ..... .................. ......3, 18, 19

Hines V. Rapides School Board, 479 F.2d 762 (5th
Cir. 1973) _________ :........ ................. -.......... .........  29

Illinois State Board, of Elections V. Socialist Work­
ers Party, 440 U.S. 173 (1979) .............................. 20

Lee V. Macon County Board of Education, 267 F.
Supp. 458 (M.D. Ala.), aff’d sub nom. Wallace
V. United States, 389 U.S. 215 (1967) .... . 15,29

Liddell V. Caldwell, 546 F.2d 768 (8th Cir. 1976),
cert, denied, 433 U.S. 914 (1977) _____________  28

Louisiana Financial Assistance Commission V.
Poindexter, 389 U.S. 571 (1968) ............... -.....— 18

Mandel v. Bradley, 432 U.S. 173 (1977) ........ ....... 20
McGlotten V. Connally, 338 F. Supp. 448 (D.D.C.

1972) ............................... ................... -....-.......... -..... 1?
Miller v. Board of Education of Topeka, 667 F.2d

946 (10th Cir. 1982) _____ ____________ __ - - -  29
Moose Lodge No. 107 V. Irvis, 407 U.S. 163 (1972).. 21
Morgan V. Hennigan, 379 F. Supp. 410 (D. Mass.), 

aff’d, 509 F.2d 580 (1st Cir. 1974), cert, denied,
421 U.S. 963 (1975) _____________ ____________  28

Mt. Healthy City School District Board of Edu­
cation v. Doyle, 429 U.S. 274 (1977) ..................  20

Northeross V. Board of Education of the Memphis
City Schools, No. C-3931 (W.D. Tenn.) ............  16

Norwood V. Harrison, 340 F. Supp. 1003 (N.D.
Miss. 1972) ................ .................. .................. -...... 17

Nonvood V. Harrison, 382 F. Supp. 921 (N.D. Miss.
1974), on remand from 413 U.S. 455 (1973) —  4

Norvjood V. Harrison, 413 U.S. 455 (1973) .............passim
Orleans Parish School Board V. Bush, 365 U.S. 569

(1961) --- ------- ----------------------------------------------- 18

TABLE OF AUTHORITIES— Continued
Page



VI

TABLE OF AUTHORITIES—Continued
Page

Pennsylvania V. Board of Directors of City Trusts,
353 U.S. 230 (1957) ......................... ................ ...... 18

Poindexter v. Louisiana Financial Assistance Com­
mission, 275 F. Supp. 833 (E.D. La. 1967), aff’d,
389 U.S. 571 (1968) ........................ ....................... 16

Potts V. Flax, 313 F.2d 284 (5th Cir. 1963) ......... .. 27
Prince Edward School Foundation V. Commis­

sioner, 478 F. Supp. 107 (D.D.C. 1979), aff’d,
No. 79-1622 (D.C. Cir. June 30, 1980), cert.
denied, 450 U.S. 944 (1981) ................................  9

Regan V. Taxation with Representation of Wash­
ington, 103 S. Ct. 1997 (1983) ............. .............. . 17

Regents of the University of California V. Bakke,
438 U.S. 265 (1978) _______ _______ ______ ____  21

Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208 (1974) ....... ................ ............  24

Simon V. Eastern Kentucky Welfare Rights Or­
ganization, 426 U.S. 26 (1976) ............................  13,22

Sosna V. Iowa, 419 U.S. 393 (1975) ........................  26
South Carolina State Board of Education V. Brown,

393 U.S. 222 (1968) .................... ................ ...... 18
St. Helena Parish School Board v. Hall, 368 U.S.

515 (1962) ____ ___________________ ___________  18
Tasby V. Estes, 572 F.2d 1010 (5th Cir. 1978), 

cert, dismissed sub nom. Estes V. Metropolitan 
Branches of the Dallas NAACP, 444 U.S. 437
(1980) ..... ............ ......................... .............. ........... . 28

United States V. Jefferson County Board of Educa­
tion, 372 F.2d 836 (5th Cir. 1966), aff’d, 380 
F.2d 385 (5th Cir.) (en banc), cert, denied, 389
U.S. 840 (1967) ................................ ................ ...... 15-16

United States V. Richardson, 418 U.S. 166 (1974).. 18
United States V. State of Georgia, 428 F.2d 377

(5th Cir. 1970) ..... .................. ......... .....................  28
United States V. State of Mississippi, 499 F.2d 425

(5th Cir. 1974) (en banc) .................................. . 15
Valley Forge Christian College v. Americans 

United for Separation of Church and State, Inc.,
454 U.S. 464 (1982) ......... .............. ............12, 13, 23, 24

Wallace v. United States, 389 U.S. 215 (1967).... 18



vii
TABLE OF AUTHORITIES—Continued

CONSTITUTION, STATUTES, RULES AND REGU­
LATIONS:

Page

U.S. Constitution Art. I ll  ....... ........ ............. ............. -............ —-  13, 26
U.S. Constitution Amendment XIV ...........   -  2
Internal Revenue Code, 26 U.S.C.:

§ 170 (1976) ................................. -......................  2
§501 (a) (1976) ....................   - 2
§501 ( c ) (3 )  (1976) .......................... ................  2,3
§ 3121(b) (8) (B) (1976) ............   -  3
§ 3306 ( c ) (8 )  (1976) ....... .................................  3

Fed. R. Civ. P. 24(a) ..........      ----- 28
Rev. Proc. 75-50 ______________ 4

OTHER AUTHORITIES:
D. Bell, Race, Racism and American Law (1973).. 16
Hearings Before the Subcommittee on Oversight 

of the House Committee on Ways and Means,
96th Cong., 1st Sess. (1979) ............ ............. ....... 11

D. Nevin and R. Bills, The Schools That Fear 
Built— Segregationist Academies in the South
(1976) ............................ .................... ..............- ..... 16

Note, Segregation Academies and State Action, 82
Y ale L.J. 1436 (1973) __________ ___ _________ 16

Terjen, “ The Segregation Academy Movement,” 
in Southern Regional Council, The South and 
Her Children, School Desegregation 1970-71
(1971) ........................ ................ .................... ..........  16

U.S. Commission on Civil Rights, Cairo, Illinois:
Racism at Floodtide (1978) ....... ........ ...................  7

U.S. Commission on Civil Rights, Cairo, Illinois:
A Symbol of Racial Polarization (1973) ............  7

U.S. Commission on Civil Rights, School Deseg­
regation in Ten Communities (1973) ....... ..........  16



In The

(Urntrt at %  Htutpfr BUUb
October Term , 1983

No. 81-757

W. Wayne A llen,
Petitioner,v.

Inez Wright, et al.

No. 81-970

Donald T. Regan, Secretary of the Treasury, et al,
Petitioners, v. ’

Inez W right, et al.

On Writs of Certiorari to the United States 
Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS

COUNTERSTATEMENT OF THE CASE

Respondents are parents of black children attending 
public schools in desegregating school districts in seven 
states throughout the country. They brought suit in the 
United States District Court for the District of Colum­
bia seeking to enjoin the federal petitioners (the Secre­
tary of the Treasury and the Commissioner of Internal 
Revenue) from providing federal support— in the form 
of income tax exemptions and the consequent deductibility



2

of contributions in computing taxable income— to racially 
discriminatory private schools formed or expanded at the 
time of public school desegregation.

Respondents’ suit is a companion to Green v. Connally, 
330 F. Supp. 1150 (D.D.C.), aff’d sub nom. Coit V. Green, 
404 U.S. 997 (1971), an action by the parents of black 
public schoolchildren in Mississippi, in which the federal 
petitioners were enjoined from granting or continuing 
tax-exempt status to Mississippi private schools that dis­
criminate on the basis of race.

BACKGROUND

The events giving rise to this action commenced much 
earlier than the Internal Revenue Service’s 1970 adoption 
of the policy that it would withhold tax-exempt status 
from private schools which practiced racial discrimina­
tion, the first background fact to which the federal peti­
tioners advert. (Fed. Pet. Br. at 3-4) This case is di­
rectly related to this Court’s unanimous ruling in Brown 
v. Board of Education, 347 U.S. 483 (1954) that racially 
segregated schooling denies black children’s personal 
Fourteenth Amendment rights to enjoy equal educational 
opportunities; and to the companion ruling in Bolling v. 
Sharpe, 347 U.S. 497 (1954), which gives black children 
protection from federally supported segregated schooling:

— For more than 15 years after Brown and Bolling, 
the federal petitioners continued to permit private 
schools that discriminate on the basis of race to 
enjoy tax-exempt status.1 See Bob Jones Univer­
sity v. United States, 103 S. Ct. 2017, 2021 (1983).

1 Under Section 501(c) (3) of the Internal Revenue Code, organ­
izations “organized and operated exclusively for * * * * charitable
* * * or educational purposes” are exempt from federal income 
taxation under Section 501 (a) of the Code. Once the schools 
are classified as tax-exempt under Section 501(a), contributions 
made to them are deductible from gross income on individual and 
corporate income tax returns under Section 170 of the Code,



8

— This policy of the federal petitioners was contrary 
to this Court’s consistent recognition that govern­
ment aid to racially segregated schools “ through 
any arrangement, management, funds or property” 
denies black children the equal protection of the 
laws. Cooper v. Aaron, 358 U.S. 1, 4 (1958), con­
struing Brown. See Griffin v. County School Board 
of Prince Edivard County, 377 U.S. 218 (1964) 
(black schoolchildren are injured by government 
financial support for purportedly “ private” seg­
regated schools).

— The Revenue Service’s 1970 decision to withhold 
tax-exempt status from discriminatory private 
schools came only after a three-judge court in 
Green entered a preliminary injunction against 
the federal petitioners, holding that:
“ The Federal Government is not constitutionally 
free to frustrate the only constitutionally per­
missible state policy, of a unitary school system, 
by providing government support for endeavors 
to continue under private auspices the kind of 
racially segregated dual school system that the 
state formerly supported.” Green v. Kennedy, 309 
F. Supp. 1127, 1137 (D.D.C.), appeal dismissed 
sub nom. Cannon v. Green, 398 U.S. 956 (1970).

In its subsequent decision on the merits, the three-judge 
court in Green “concluded that the plaintiffs were en­
titled * * * to a declaration that the [Internal Revenue] 
Code requires the denial and elimination of Federal tax 
exemptions for racially discriminatory private schools 
and of Federal income tax deductions for contributions 
to such schools.” Green v. Connally, 330 F. Supp. at 1156. 
The court therefore permanently enjoined the federal

Organizations recognized under Section 501(c) (3) are also exempt 
from federal social security taxes (FICA) pursuant to Section 
3121(b)(8 )(B ) of the Code, 26 U.S.C. § 3121(b) (8) (B) (1976), 
and from federal unemployment taxes (FUTA) pursuant to Sec­
tion 3306(c) (8) of the Code, 26 U.S.C. § 3306(c) (8) (1976).



4

petitioners from approving any application for tax- 
exempt status for any private school in Mississippi un­
less the school made certain specific showings that it was 
in fact nondiscriminatory. Id. at 1179-80. That ruling was 
affirmed by this Court sub nom. Coit v. Green, 404 U.S. 
997 (1971).2

THE PRESENT PROCEEDINGS

Five years later, on July 22, 1976, the plaintiffs in 
Green found it necessary to reopen the case to obtain an 
order enforcing the prior judgment and granting further 
relief because the federal petitioners had continued to 
award tax-exempt status to discriminatory schools in 
Mississippi. The Green plaintiffs showed that, despite the 
court’s earlier order, certain Mississippi private schools 
still enjoyed federal tax-exempt status, even though those 
schools were specifically held to be racially discriminatory 
(and therefore ineligible for state-loaned textbooks) in 
Norwood v. Harrison, 382 F. Supp. 921 (N.D. Miss. 
1974), on remand from 413 U.S. 455 (1973).3 One week

2 After the permanent injunction, issued in Green, the IRS adopted 
guidelines and procedures for reviewing applications for tax- 
exempt status from private schools. The IRS procedures, now 
codified in Rev. Proe. 75-50 (Inteirv. Pet. App. le-12e), generally 
follow the outline of the requirements ordered in 1971 for Missis­
sippi schools by the court in Green. In January 1982 the govern­
ment announced its intent tô  return to a policy of issuing the ex­
emptions to discriminatory schools, see infra pp. 25-26.

3 By order and permanent injunction dated May 5, 1980, as clari­
fied on June 2, 1980, the district court in the Green case strength­
ened the permanent decree. The court permanently enjoined the 
federal petitioners from granting or continuing tax-exempt status 
to Mississippi schools, or the organizations operating them, which 
(i) have been determined in adversary or administrative proceed­
ings to be racially discriminatory or (ii) were established or ex­
panded at or about the time the public school districts in which 
they are located or which they serve were desegregating, and which 
cannot demonstrate that they do not racially discriminate in ad­



5

after the plaintiffs in Green filed their motion for en­
forcement and further relief, the respondents filed the 
Complaint in this case (then called Wright v. Simon). 
(J.A. 15-42) They sought the same relief, in their com­
munities, as the plaintiffs in Green sought for children in 
Mississippi. The district court consolidated the present 
case with Green. (J.A. 2-3)

As in Green, the plaintiffs (respondents here) are 
parents of black schoolchildren in desegregating public 
school districts who sued on their own behalf and on 
behalf of their children: 4

missions, employment, scholarships, loan programs, athletics, and 
extra-curricular programs.

The court held that these conditions raise an inference of present 
discrimination which a school may “overcome by evidence which 
clearly and convincingly reveals objective acts and declarations 
establishing that such [a school's all-white or virtually all-white 
enrollment and staff] is not proximately caused by such school’s 
policies and practices.” Injunction, Green V. Regan, D.D.C. No. 
1355-69 (May 5, 1980).

4 The term “desegregating public school districts” refers to> those 
public school districts which were once segregated and which are 
in the process of being desegregated pursuant to* court order, under 
federal regulations or guidelines, under state law, or voluntarily. 
See Complaint, jf 1. (J.A. 17) Petitioners argue that respondents’ 
children are attending “desegregated” schools, citing out of con­
text a statement made in oral argument and attempting to make it 
override the whole thrust of the Complaint. Fed. Pet. Brief at 47 
n.42; Interv. Pet. Brief at 3 & n.3. The schools attended by re­
spondents’ children are desegregated in the sense that they are 
once-segregated schools that are in the process of desegregating. 
However, the history has been, as. the Court is well aware, that the 
achievement of unitary status often, comes only after a. long process 
of litigation, negotiation, and, in some cases, reopened litigation. 
See, e.g., Brown V. Board of Educ., 84 F.R.D. 383 (D. Kan. 1979). 
In any event, the IRS certainly is no more free to' grant tax-exempt 
status to racially discriminatory private schools in districts that 
have achieved unitary status than in districts which have not. See 
Norwood v. Harrison, 413 U.S. 455, 468 (1973) ( “That the State’s 
public schools are now fully unitary, as the District Court found, 
is irrelevant.” ).



6
® Respondents Inez Wright and Geneva Walker al­

leged that they have children who attend public 
school in Memphis, Tennessee. (J.A. 19-20) As a 
result of litigation commenced in 1960, the Mem­
phis City Schools were required to desegregate 
pursuant to a series of court decisions from 1971 
through 1973. (J.A. 26) Since the filing of the 
Complaint in this case, the federal district court 
ruled in the course of that public school desegrega­
tion litigation that the public school board has an 
obligation to avoid support for segregated private 
schools, including the Briarcrest School System, the 
intervenor here, which was cited in respondents’ 
Complaint as an example of a discriminatory pri­
vate school which enjoys tax-exempt status. See 
infra pp. 15-16.

® Respondents Delores G. Beamon, Mary Louise Bel- 
ser, Etherline House and Lou Ella Jackson alleged 
that they have children who attend public schools 
in Montgomery, Alabama. (J.A. 20) Pursuant to 
a federal court order entered in a suit originally 
filed in 1964, the Montgomery public schools be­
gan mandatory desegregation in September 1970. 
(J.A. 30) Further desegregation measures were 
required by a 1974 court order. The district court 
in Gilmore v. City of Montgomery, 337 F. Supp. 
22 (M.D. Ala. 1972), rev’d in part, 473 F.2d 832 
(5th Cir. 1973), affd, 417 U.S. 556 (1974) con­
cluded that Montgomery was constitutionally pro­
hibited from affording exclusive use of recrea­
tional facilities to segregated private schools— 
including the Montgomery Academy which respond­
ents allege is improperly tax exempt—because the 
aid provided “ significantly affects the Montgomery 
public school system.” 337 F. Supp. at 24-25. (J.A. 
30)

* Respondents Mable Hollis, Annie L. Johnson and 
Clydia Koen alleged that they have children who 
attend Cairo, Illinois public schools. (J.A. 21) The 
Cairo public schools were required to desegregate 
in September 1967, after the Department of



7

Health, Education and Welfare (HEW) found the 
system was racially segregated in violation of Title 
VI. (J.A. 31) Later reports of the U.S. Com­
mission on Civil Rights, however, describe the role 
of segregated private schools in undercutting the 
Cairo public school system’s desegregation efforts.5

• Respondents Hyland L. Davis and Lawrence Wash­
ington alleged that their children attend public 
schools in Beaufort County, South Carolina. (J.A. 
21) In 1969, following several months of negotia­
tions, HEW concluded that it could not obtain vol­
untary compliance with Title VI and commenced 
formal enforcement proceedings against the Beau­
fort County School District. (J.A. 28) Following 
a hearing in 1970, an initial decision of noncom­
pliance with Title VI was issued against the 
County by HEW. (J.A. 28) In 1973, the County 
agreed to a student assignment plan.6 (J.A. 28)

9 Respondents Rena M. Robinson, Robert C. Zim­
merman, Rev. John Wilbur Wright, and Lavinia 
Washington alleged that they have children who 
attend public schools in Orangeburg, South Caro­
lina. (J.A. 21) In 1967, a school desegregation 
plan for District 2, where respondents Robinson 
and Zimmerman live, was approved by HEW. 
(J.A. 36) In District 3, where respondents Wright 
and Washington live, a court order was entered 
in 1970 and HEW accepted District 3’s assurance 
that a school desegregation plan would be imple­
mented. (J.A. 28)

5 See U.S. Commission on Civil Rights, Cairo, Illinois: A Symbol 
of Racial Polarization 19 (1973) ; U.S. Commission on Civil Rights, 
Cairo, Illinois: Racism at Floodtide 37-38 (1978).

6 In the case of Beaufort County, and all of the remaining com­
munities referred to in the Complaint, the Complaint identifies 
segregated, tax-exempt private schools serving the community 
which were formed or expanded at the time of public school deseg­
regation.



8

® Respondent Robert Jackson alleged that his son 
attends public school in Natchitoches Parish, 
Louisiana. (J.A. 22) Pursuant to court order, the 
Natchitoches Parish schools began desegregation 
in September 1969. (J.A. 27)

• Respondent Moses Williams alleged that he has 
children who attend public schools in Madison 
Parish, Louisiana. (J.A. 22) Pursuant to court 
order, the Madison Parish schools were required 
to desegregate in September 1969. (J.A. 33) In 
Brumfield v. Dodd, 405 F. Supp. 338, 346 (E.D. 
La. 1975), the court found that certain named 
segregated private schools, which respondents here 
allege to be improperly tax exempt, “have sig­
nificantly interfered with the integration of the 
public schools of [Madison] parish.”

® Respondents Fred Bracy and Betty Bracy, Alma 
Lee Griffin and Darnell Griffin alleged that they 
have children who attend public schools in Monroe, 
Louisiana. (J.A. 22) Public school desegregation in 
Monroe was begun in 1970 following a series of 
federal court decisions beginning in 1968. (J.A. 
34) •

• Respondents Elsie R. Walker and Anna G. Miller 
alleged that they have children who attend public 
school in Prince Edward County, Virginia. (J.A. 
20) The United States District Court for the East­
ern District of Virginia ordered the Prince Ed­
ward County School Board to desegregate its 
schools in 1959. (J.A. 29) In response, the School 
Board closed the public schools and local govern­
ments subsidized and supported a segregated pri­
vate school for white children, the Prince Edward 
Academy. That action was held by this Court in 
Griffin v. County School Board of Prince Edward 
County, 377 U.S. 218 (1964), to be a violation of 
the rights of children situated identically to the 
children of respondents Walker and Miller. Never-



9

theless, at the time the Complaint in this case was 
filed, the federal petitioners continued to recognize 
the Prince Edward Academy as tax-exempt, See 
Prince Edward School Foundation v. Commis­
sioner, 478 F. Supp. 107, 109-10 (D.D.C. 1979), 
aff’d, No. 79-1622 (D.C. Cir. June 30, 1980), 
cert, denied, 450 U.S. 944 (1981).

® Respondent Herbert H. Jackson alleged that his 
children attend the Boston, Massachusetts public 
schools. (J.A. 22) Pursuant to court order, the 
Boston schools began desegregation in September 
1974, and an expanded desegregation plan was 
implemented in September 1975. (J.A. 32)

These respondents alleged that their right to equal 
educational opportunity is infringed by the grant of fed­
eral tax benefits to racially segregated private schools 
formed or expanded in response to the commencement of 
desegregation of the public schools they attend. (J.A. 38) 
They alleged that the grant of federal tax exemptions 
to such schools constitutes tangible federal financial aid 
and support for racially segregated educational institu­
tions which is unconstitutional; and that such aid 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 (now the 
Department of Education), and local school authorities 
to desegregate public school districts which have been 
operating racially dual school systems. (J.A. 38-39)

The principal relief sought by respondents is, in es­
sence, the relief obtained by the Green plaintiffs in 1980 
with respect to Mississippi schools.7 Respondents alleged

7 See note 3 supra. Respondents seek to represent a nationwide 
class of all other parents of black children attending public schools 
which are undergoing or may in the future undergo desegregation. 
Complaint, ([ 18. (J.A. 22-23)



10

that the federal petitioners are continuing to grant tax- 
exempt status to racially discriminatory private schools 
despite their professed policy of denying tax-exempt 
status to such institutions. In practice, respondents al­
leged, the IRS permits segregated private schools to ob­
tain and keep tax-exempt status by certifying that they 
do not discriminate even though some do, in fact, dis­
criminate and, in several cases, have been judicially found 
to discriminate. (J.A. 17-18, 25)8

As acknowledged by the government in its brief, re­
spondents’ allegation that the IRS is granting federal 
tax exemptions to discriminatory private schools must 
be accepted as true for purposes of the standing issue 
before the Court.9 The allegation has, in any event, al­
ready been admitted by the IRS. In 1979 congressional 
testimony, then-Commissioner Jerome Kurtz conceded 
that:

We concluded that the Service’s procedures were in­
effective in identifying schools which in actual opera­
tion discriminate against minority students, even 
though the schools may profess an open enrollment

8 Petitioners erroneously assert that the Complaint lacks any 
allegation that these racially segregated private schools are, in 
fact, discriminatory. Fed. Pet. Brief at 10 n.10; Interv. Pet. Brief 
at 15 n,47. They ignore the plain import of If 2 of the Complaint 
that “schools * * * receive tax exemptions merely on the basis of 
adopting and certifying—but not implementing—a policy of non­
discrimination.” (J.A. 17-18) The Complaint further alleges that 
“ [m]any of the private schools described in the foregoing para­
graphs have been found to discriminate on the basis of race * * 
Complaint, If 22. (J.A. 25) Thus, far from lacking an allegation 
that the federal petitioners are continuing to afford exemptions 
to discriminatory schools, the Complaint alleges federal petitioners’ 
conduct with particularity: they do not seek to determine whether 
racially segregated private schools which submit unsupported 
assurances of nondiscrimination in fact are operated on a dis­
criminatory basis.

9 Fed. Pet. Brief at 19 n.18, citing Gladstone, Realtors v. Village 
of Bellwood, 441 U.S. 91, 115 (1979).



11

policy and comply with the yearly publication re­
quirement of Revenue Procedure 75-50 * * *. A 
clear indication that our rules require strengthening 
is the fact that a number of private schools continue 
to hold tax exemption [s] even though they have been 
held by Federal courts to be racially discriminatory. 
This position is indefensible. [Hearings Before the 
Subcomm. on Oversight of the House Comm, on Ways 
and Means, 96th Cong., 1st Sess. 5 (1979) (state­
ment of Jerome Kurtz).] [10]

In response to the Complaint, the government and the 
intervenor, W. Wayne Allen, the founder of Briarcrest 
Baptist School System, Inc., filed motions to dismiss. The 
district court granted the motions on three grounds, in­
cluding lack of standing. (Interv. Pet. App. 3a) The dis­
trict court held, however, that the dismissal of Wright 
did not affect the status of the companion Green litigation 
because the “ jurisdictional”  arguments raised in Wright 
already had been rejected in Green and the standing of 
the Green plaintiffs already had been upheld in the de­
cision on the merits. (See Interv. Pet. App. 3a n.l)

The court of appeals reversed the dismissal of this case 
on all three grounds relied on by the district court. On 
the standing issue now before the Court, the court of ap­
peals held that the Court’s decisions in Green, Norwood, 
and Gilmore were “determinative of the standing issue 
in this case * * *.”  (Interv. Pet. App. 18b) In so holding, 
the court of appeals recognized that, like the present case, 
Green, Norwood, and Gilmore all involved “charges of 
government conduct alleged to be inconsistent with an 
overriding, constitutionally rooted national policy against 10

10 In addition, after further relief was ordered in Green (see 
note 3 supra) —the relief respondents seek for their communi­
ties in the present case—the IRS revoked the tax exemptions of 
five Mississippi private schools which discriminate on the basis 
of race. See Affidavit of S. Allen Winborne, Green V. Regan, D.D.C. 
No. 1355-69 (July 1, 1983) at 2.



12

racial discrimination in United States educational facili­
ties.” (Interv. Pet. App. 18b [Emphasis in original.]) 
The court of appeals thus declined to deviate from this 
Court’s holdings that the Constitution bars government aid 
to segregated schools because that aid, in and of itself, 
infringes the rights of black schoolchildren to equal edu­
cational opportunities.

SUMMARY OF ARGUMENT

Petitioners’ argument must stand or fall on the va­
lidity of their fundamental premise that respondents are 
“mere disappointed observers of the governmental proc­
ess” who are no more injured by the government’s aid to 
private schools that practice racial discrimination than are 
any other citizens. Fed. Pet. Br. at 17. See also Interv. 
Pet. Br. at 25-27. This premise is fundamentally errone­
ous because respondents, who are black public school- 
children in districts where private discriminatory schools 
were created or expanded at the time of public school 
desegregation, suffer an impairment of their individual 
rights to equal educational opportunity when their govern­
ment aids the private discriminatory schools by giving 
them tax benefits, just as the black schoolchildren in 
Norwood v. Harrison, 413 U.S. 455 (1973) were injured 
when their government aided private discriminatory 
schools by giving them free textbooks.

Because respondent schoolchildren are the people whose 
rights to equal educational opportunity are infringed by 
government’s violation of its obligation to steer clear of aid 
to private, racially discriminatory schools— and not citi­
zens generally, black citizens generally, or taxpayers gen­
erally— this case is not governed by Valley Forge Christian 
College v. Americans United far Separation of Church 
and State, Inc., 454 U.S. 464 (1982). Because the wrong 
of which respondents complain (government aid to private 
racially discriminatory schools in their communities) can 
be redressed by injunctive relief against the government,



13

this case is not governed by Simon V. Eastern Kentucky 
Welfare Rights Organization, 426 U.S. 26 (1976). On the 
contrary, this case is governed by Norwood where, as 
the federal petitioners admit, the plaintiffs had standing.

ARGUMENT

BLACK SCHOOLCHILDREN ATTENDING DESEGRE­
GATING PUBLIC SCHOOLS HAVE STANDING TO 
COMPLAIN OF TANGIBLE GOVERNMENT AID TO 
RACIALLY DISCRIMINATORY PRIVATE SCHOOLS 
FORMED OR EXPANDED IN THEIR COMMUNITIES 
AT THE TIME OF THE INITIATION OF PUBLIC 
SCHOOL DESEGREGATION BECAUSE SUCH GOV­
ERNMENT1 AID INFRINGES THEIR PERSONAL 
RIGHT TO EQUAL EDUCATIONAL OPPORTUNITY.

The parties are agreed that Article III of the Constitu­
tion requires a “party who' invokes the court’s authority 
to ‘show that he personally has suffered some actual or 
threatened injury as a result of the putatively illegal con­
duct of the defendant,’ Gladstone, Realtors V. Village of 
Bellwood, 441 U.S. 91, 99 (1979), and that the injury 
‘fairly can be traced to the challenged action’ and ‘is 
likely to be redressed by a favorable decision,’ Simon v. 
Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 
41 (1976).” Valley Forge Christian College v. Americans 
United for Separation of Church and State, Inc., 454 
U.S. 464, 472 (1982) (footnote omitted).

The parties are also agreed that the government may 
not lawfully grant tax exemptions to discriminatory pri­
vate schools. Bob Jones University v. United States, 103 
S. Ct. 2017 (1983). See Fed. Pet. Br. at 4. Moreover, 
on review of the grant of a motion to dismiss, it must 
be taken as true that, as alleged, the Revenue Service is 
nonetheless granting tax exemptions to private schools 
that discriminate on the basis of race. See note 9 supra.

Respondents, black schoolchildren attending desegregat­
ing schools, allege that they are injured by the govern­



14

ment’s grant of tax exemptions to racially discriminatory 
private schools formed or expanded in their communities 
in response to public school desegregation. The question 
presented is whether respondents have standing to seek 
judicial relief. Petitioners contend that respondents lack 
standing because they assert no more than a “generalized 
grievance” that they hold in common with all citizens. 
Fed. Pet. Br. at 24-30; Interv. Pet. Br. at 18-27. We 
submit, however, that respondents are the victims of the 
government’s unlawful aid to discriminatory private 
academies in the communities where respondents attend 
public schools, and that this aid deprives each respond­
ent of the full enjoyment of his or her rights to equal 
educational opportunity. This injury gives respondents 
standing to seek redress in the federal courts. Because 
respondents are injured by federal aid to private dis­
crimination, it is clear that, contrary to petitioners’ con­
tention, such injury is redressable by relief against the 
federal petitioners.

A. The Government’s Grant of Tangible Financial Aid to 
Private, Racially Discriminatory Schools Formed or 
Expanded in Respondents’ Communities at the Time 
of the Initiation of Public School Desegregation In­
fringes Respondents’ Personal Rights to Equal Edu­
cational Opportunity.

Respondents stand on the same footing as the plaintiffs 
in Norwood v. Harrison, 413 U.S. 455 (1973). Govern­
ment support for discriminatory schools in respondents’ 
communities is just as personal a deprivation of respond­
ents’ rights to equal educational opportunity as the gov­
ernment’s provision of textbooks to such schools in 
Norwood.

The plaintiffs in Norwood, parents of black Mississippi 
schoolchildren, sought to enjoin Mississippi’s program of 
providing free textbooks to private discriminatory schools 
created or enlarged concurrently with desegregation of



15

Mississippi public schools. As in this case, the Norwood 
plaintiffs alleged that the program “provided direct [gov­
ernmental] aid to racially segregated education.” 413 
U.S. at 457. And, as in this case, “ [i]t was also alleged 
that the textbook aid program thereby impeded the 
process of fully desegregating public schools, in violation 
of appellants’ constitutional rights.”  Id. The Court’s 
holding that the plaintiffs were entitled to relief was 
based upon the axiom that a government “may not in­
duce, encourage or promote private persons to accomplish 
what it is constitutionally forbidden to accomplish.” 413 
U.S. at 465, quoting from Lee v. Macon County Board of 
Education, 267 F. Supp. 458, 475-76 (M.D. Ala.), aff’d 
sub nom. Wallace v. United States, 389 U.S. 215 (1967)
(per curiam). Because the provision of textbooks “gives 
support to such [private] discrimination,” plaintiffs were 
entitled to relief. 413 U.S. at 465.

The decision in Ncwwood is based on the fundamental 
rationale that, just as a government injures black school- 
children when it operates a segregated system of educa­
tion, it injures those schoolchildren when it gives sig­
nificant aid to private discriminatory schools, especially 
those organized or expanded concurrently with desegrega­
tion. That is why the Court said that: “ [a] State’s consti­
tutional obligation requires it to steer clear, not only of 
operating the old dual system of racially segregated 
schools, but also of giving significant aid to institutions 
that practice racial or other invidious discrimination.” 
Id. at 467.

Both before and after Norwood, the injurious effect of 
private segregated academies on public school desegrega­
tion has been apparent.11 In fact, private schools in the

11 See United States V. State of Mississippi, 499 F.2d 425, 429-30 
(5th Cir. 1974) ( en banc) ;  Graham v. Evangeline Parish School 
Bd., 484 F.2d 649, 650 (5th Cir. 1973), cert, denied, 416 U.S. 970 
(1974) ; United States V. Jefferson County Bd. of Educ., 372 F.2d



16

school districts referred to in the Complaint have been 
found to have significantly interfered with the integra­
tion of the public schools of those districts. See, e.g., 
Ruling on Proposed Consent Decree of March, 1982, 
Northcross v. Board of Education of the Memphis City 
Schools, No. C-3931 (W.D. Tenn. April 12, 1982) at 20 
(referring to the Briarcrest School System, cited in the 
Complaint at J.A. 26-27) ; Brumfield v. Dodd, 405 F. 
Supp. 338, 346 (E.D. La. 1975) (referring to effect of 
Delta Christian Academy and Tallulah Academy on the 
public schools of Madison parish) ; and Gilmore v. City 
of Montgomery, 337 F. Supp. 22, 24 (M.D. Ala. 1972), 
rev’d in part, 473 F.2d 832 (5th Cir. 1973), aff’d, 417 
U.S. 556, 569 (1974) (referring to effect of Montgomery 
Academy on public school desegregation in Montgomery).

However, the Court in Norwood did not rest its deci­
sion on any requirement of a showing of a “precise 
causal relationship”  between the state aid and public 
school desegregation. 413 U.S. at 464-68. On the contrary, 
the Court held that the provision of significant aid, in and 
of itself, injured plaintiffs. Id.

The District Court in Norwood had failed to recognize 
the personal nature of the injury suffered by black school- 
children when the government aids educational discrimina­

836, 848-49 (5th Cir. 1966), aff’d, 380 F.2d 385 (5th Cir.) (era 
banc), cert, denied, 389 U.S. 840 (1967) ; Brumfield v. Dodd, 405 
F. Supp. 338, 342 (E.D. La. 1975) ; Coffey v. State Educ. Fin. 
Comm’n, 296 F. Supp. 1389, 1392 (S.D. Miss. 1969); Poindexter v. 
Louisiana Fin. Assistance Comm’n, 275 F. Supp. 833, 857 (E.D. 
La. 1967) (three-judge court), aff’d, 389 U.S. 571 (1968). See 
also, e.g., D. Bell, Race, Racism and American Law 496-97 (1973) ; 
D. Nevin and R. Bills, The Schools That Fear Built—Segrega­
tionist Academies in the South 12 (1976); Terjen “ The Segrega­
tion Academy Movement,” in Southern Regional Council, The 
South and Her Children, School Desegregation 1970-71 at 79 
(1971) ; U.S. Commission on Civil Rights, School Desegregation 
in Ten Communities 17, 29, 36, 80 (1973) ; Note, Segregation 
Academies and State Action, 82 Y ale L.J. 1436, 1450-53 (1973).



17
tion in their community. 340 F. Supp. 1003 (N.D. Miss. 
1972). It held that the plaintiffs had not satisfied the re­
quirement of showing that the “plaintiff is himself im­
mediately harmed, or immediately threatened with harm, 
by the challenged action * * *” , id. at 1014, because there 
was no showing that any child would withdraw from a 
private school and enroll in the public schools if deprived 
of free textbooks, and because, in any event, the issuance 
of free textbooks to students attending private schools had 
failed to defeat the establishment of a state-wide unitary 
school system. Id. This Court reversed, holding that “ the 
Constitution does not permit the State to aid discrimination 
even when there is no precise causal relationship between 
state financial aid to a private school and the continued 
well-being of that school.” 413 U.S. at 465-66. Moreover, 
the Court held that the fact that the State’s public schools 
were unitary was irrelevant. Id. at 468. In sum, the 
essence of Norwood is that government aid to discrimi­
natory private schools in and of itself infringes the rights 
of black schoolchildren attending the public schools to 
equal educational opportunity.

The standing of respondents in this case follows in­
exorably from Norwood. The aid given to the private 
schools in this case is far more “significant” than that 
involved in Norwood?3 “ [T]ax exemptions and tax- 
deductibility are a form of subsidy,” Regan v. Taxation 
With Representation of Washington, 103 S. Ct. 1997, 
2000 (1983); a federal tax deduction is the practical 
equivalent of a matching grant, Green V. Kennedy, 309 
F. Supp. at 1134; McGlotten V. Connally, 338 F. Supp. 
448, 456 n.37 (D.D.C. 1972). Indeed, in Norwood, this 
Court expressly relied on prior cases prohibiting state aid 
in the form of tuition grants, tuition loans, and tax 
subsidies (citing Green v. Connally itself) to racially dis­
criminatory private schools; in so doing, the Court de- 12

12 There can be no doubt that federal aid is every bit as injurious 
as state aid. See Bolling V. Sharpe, 347 U.S. 497 (1954).



18

dared that “ [a] textbook lending program is not legally 
distinguishable from the forms of state assistance fore­
closed by [those] prior cases.” 413 U.S. at 463 & n.6. 
Accordingly, the allegations of respondents’ complaint, 
which directly parallel those in Norwood, establish the 
requisite injury, just as plainly as did the allegations in 
Norwood. The government’s aid to racially discriminatory 
schools formed or expanded at the time of the commence­
ment of the process of desegregation in respondents’ com­
munities infringes respondents’ right to equal educational 
opportunity, just as the provision of textbooks to such 
schools injured the plaintiffs in Norwood.

Norwood is one case in what this Court recognized in 
Bob Jones University v. United States, 103 S. Ct. at 2029 
as “ |a]n unbroken line of cases following Brown V. Board 
of Education [that] establishes beyond doubt this Court’s 
view that racial discrimination in education violates a 
most fundamental national public policy, as well as rights 
of individuals.”  [Emphasis added.] More important, for 
present purposes, that unbroken line of decisions also 
makes clear that the “ individuals” whose “rights” are 
violated by government aid to racial discrimination in 
education are the black schoolchildren whose right to equal 
educational opportunity is infringed by that support.13

13 See Norwood v. Harrison, 413 U.S. 455 (1973) ; South Carolina 
State Bd. of Educ. v. Brown, 393 U.S. 222, aff’g per curiam 296 
F. Supp. 199 (D.S.C. 1968); Louisiana Fin. Assistance Comm’n v. 
Poindexter, 389 U.S. 571 (1968), aff’g per curiam 275 F. Supp. 833 
(E.D. La. 1967); Wallace V. United States, 389 U.S. 215, aff’g per 
curiam Lee v. Macon County Bd. of Educ., 267 F. Supp. 458 (M.D. 
Ala. 1967); Griffin v. County School Bd., 377 U.S. 218 (1964) ; St. 
Helena Parish School Bd. V. Hall, 368 U.S. 515 (1962), aff’g per 
curiam 197 F. Supp. 649 (E.D. La. 1960); Orleans Parish School 
Bd. v. Bush, 365 U.S. 569, aff’g per curiam 187 F. Supp. 42, 188 
F. Supp. 916 (E.D. La. 1961) ; Faubus v. Aaron, 361 U.S. 197, 
aff’g per curiam Aaron v. McKinley, 173 F. Supp. 944 (E.D. Ark. 
1959) ; Pennsylvania v. Board of Directors of City Trusts, 353 
U.S. 230 (1957) (per curiam).



19

In Brown itself, the Court held that the affected “ chil­
dren of the minority group” suffer a personal deprivation 
of “equal educational opportunities.” Brown v. Board of 
Education, 347 U.S. at 493. The Court focused squarely 
on the injury suffered by black schoolchildren when their 
government sanctions segregated schooling:

Segregation of white and colored children in pub­
lic schools has a detrimental effect upon the colored 
children. The impact is greater when it has the 
sanction of the law; for the policy of separating the 
races is usually interpreted as denoting the infe­
riority of the negro group. A sense of inferiority 
affects the motivation of a child to learn. Segrega­
tion with the sanction of law, therefore, has a ten­
dency to [retard] the educational and mental devel­
opment of negro children and to deprive them of 
some of the benefits they would receive in a racial [ly] 
integrated school system. [347 U.S. at 494 (quot­
ing trial court findings) (footnote omitted).]

Similarly, Gilmore v. City of Montgomery, 417 U.S. 
556 (1974) reaffirmed the rationale of Norwood and 
recognized that exclusive use of city recreational facili­
ties by private discriminatory schools infringed the “ con­
stitutional rights of children not to be discriminated 
against * * 417 U.S. at 568, quoting from Cooper v.
Aaron, 358 U.S. 1, 17 (1958). In Griffin v County School 
Board of Prince Edward County, 377 U.S. 218 (1964), 
the Court unanimously held that support provided to pri­
vate segregated schools by tuition grants and tax credits 
unconstitutionally injured black schoolchildren in Prince 
Edward County. Id. at 225. The “perpetuation of racial 
segregation” afforded by government aid to private schools 
denied the rights of black public schoolchildren to an 
equal educational opportunity. Id. at 232. Similarly, in 
Green, the Mississippi component of the present litigation, 
the three-judge district court, in granting a preliminary 
injunction, explicitly held that children situated identi­
cally to respondents had standing to complain of the



20

injury they suffered as a result of the Revenue Service’s 
grant of tax-exempt status to discriminatory schools in 
Mississippi. Green V. Kennedy, 309 F. Supp. 1127, 1132 
(D.D.C.), appeal dismissed sub nom. Cannon v. Green, 
398 U.S. 956 (1970). This Court affirmed, without opin­
ion, the grant of a permanent injunction. Coit v. Green, 
404 U.S. 997 (1971).14 Thus, from Brown to Norwood to 
Bob Jones, this Court has never wavered fi-om the proposi­
tion that government support of discriminatory treat­
ment—including discriminatory treatment by private 
schools— inevitably harms black schoolchildren because it 
“ exerts a pervasive influence on the entire educational

14 The government seeks to minimize the significance of the 
Court’s decision in Green by reference to' dicta in Bob Jones Univ. 
V. Simon, 416 U.S. 725 (1974). Fed. Pet. Br. at 18, 47-48. The 
government points to the Court’s remark that because the govern­
ment had changed its position regarding the tax-exempt status 
of segregated private schools, “ [this] Court’s affirmance in Green 
lacks the precedential weight of a case involving a truly adversary 
controversy.” 416 U.S. at 740 n .ll. Although the summary affirm­
ance may not have endorsed the specific reasoning of the lower court, 
it necessarily confirmed the holding. Since the court has repeatedly 
stated that it has an affirmative obligation to ensure that jurisdic­
tion is present, e.g., Andrus V. Charlestone Stone Products Co., 436 
U.S. 604, 607 n.6 (1978); Mt. Healthy City School Dist. Bd. of 
Educ. v. Doyle, 429 U.S. 274, 278 (1977), by confirming the holding 
in Green it confirmed standing. Thus, the Green affirmance falls 
within the principle advocated by the government. “The prece­
dential effect of a summary affirmance can extend no farther than 
‘the precise issues presented and necessarily decided by those 
actions.’ ” Illinois State Bd. of Elections v. Socialist Workers 
Party, 440 U.S. 173, 182 (1979), quoting Mandel v. Bradley, 432 
U.S. 173, 176 (1977). Fed. Pet. Br. at 47-48.

Moreover, on the issue of the injury to black public school- 
children, there can hardly be doubt that the Court considered its 
summary affirmance in Coit v. Green to be of precedential value. 
In Norwood V. Harrison, the Court specifically relied on Coit v. 
Green to' support; its conclusion that Mississippi unconstitutionally 
injured black public schoolchildren by providing textbooks to dis­
criminatory private schools. 413 U.S. at 463 n.6.



21

process.”  Bob Jones University, 103 S. Ct. at 2030, quot­
ing Norwood, 413 U.S. at 469 (emphasis by the Court).

Once it is clear that the injury suffered by respondents 
is the infringement of their equal educational opportunity 
occasioned by government support for discriminatory edu­
cation in their communities, it is at once also clear that 
that injury is a personal one, and that it can be immedi­
ately redressed by a favorable decision requiring with­
drawal of the government’s support. Accordingly, re­
spondents have standing under the traditional tests. See, 
e.g., Gladstone, Realtors v. City of Bellwood, 441 U.S. 91, 
113 n.26 (1979) (“ the deprivation of the benefits of 
interracial association constitutes the alleged injury” ) ; 
Regents of the University of California V. Bakke, 438 
U.S. 265, 280-81 n.14 (1978) (standing rested not on 
failure to be admitted to medical school due to affirmative 
action program, but preclusion from opportunity to com­
pete for all places, an alleged violation of fundamental 
rights); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179 
(1972) (plaintiff had standing to seek decree enjoining 
enforcement of state regulation insofar as it required 
the Moose Lodge to comply with its racially discriminatory 
rules) ; Baker v. Carr, 369 U.S. 186, 208 (1962) (alleged 
diminution of “ [a] citizen’s right to a vote free of ar­
bitrary impairment by state action” is legally cognizable 
injury adequate to confer standing).15

B. The Two Cases Principally Relied Upon by Petitioners, 
Eastern Kentucky and Valley Forge, Do Not Control 
This Case.

The entire argument of the petitioners rests upon their 
puzzling refusal to recognize that the respondent black 
schoolchildren are the victims of the government’s unlaw­
ful aid to private racial discrimination. Once this im­

15 See also Carey v. Piphus, 435 U.S. 247, 266 (1978) (depriva­
tion of procedural due process rights is actionable without other 
actual injury).



22

portant fact is recognized, it is clear that the two cases 
principally relied upon by the petitioners have no bearing 
on this case.

1. Simon v. Eastern Kentucky Welfare Rights Organi­
zation, 426 U.S. 26 (1976), did not involve plaintiffs who 
were being denied equal protection of the laws by govern­
ment aid to racial discrimination. The plaintiffs in that 
case were indigents who complained that they were being 
denied medical treatment by hospitals that were accorded 
tax-exempt status as charities. This Court held that plain­
tiffs lacked standing because it was “purely speculative” 
whether the injury complained of (denial of medical 
service) could be fairly traced to the challenged action of 
the Revenue Service rather than to “ decisions made by 
the hospitals without regard to the tax implications.” 426 
U.S. at 42-43. 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 respondents 
of [the] services” they sought from the hospitals. Id. at 
43.

The difference between Eastern Kentucky and this case 
is the constitutional law declared in Brown and Norwood: 
government aid to segregated schooling, in and of itself, 
injures black schoolchildren. Therefore, unlike Eastern 
Kentucky, the injury complained of here is a direct con­
sequence of the unconstitutional conduct of the federal 
petitioners and would be redressed by grant of the relief 
sought. Respondents here do not seek admission to private 
schools which exclude black students. Rather, they seek 
an end to government support of racial discrimination 
that injures them.

The federal courts have the power and duty to redress 
respondents’ injury by ordering the Revenue Service to 
adopt procedures that will be effective to terminate the 
grant of tax benefits to racially discriminatory schools. 
Accordingly, this case is not governed by Eastern Ken-



23

i%cky, but by Norwood, where this Court held that the 
district court erred in thinking that plaintiffs were re­
quired to show that withdrawal of the free textbooks 
would cause students to transfer from private to public 
schools. Chief Justice Burger, writing for the Court, 
explained:

We do not agree with the District Court in its an­
alysis of the legal consequences of [the] uncertainty 
[whether the relief requested would result in stu­
dent transfers from private to public schools], for 
the Constitution does not permit the State to aid dis­
crimination even when there is no precise causal 
relationship between state financial aid to a private 
school and the continued well-being of that school. 
A state may not grant the type of tangible financial 
aid here involved if that aid has a significant ten­
dency to facilitate, reinforce, and support private 
discrimination. [413 U.S. at 465-66.]

2. The respondents here are not claiming generalized 
injury as citizens or taxpayers, and thus the case is not 
governed by Valley Forge Christian College v. Americans 
United for Separation of Church and State, Inc., 454 U.S. 
464 (1982). In that case, an organization dedicated to 
the separation of church and state challenged a gift of 
government property to a church-related college on the 
ground that such gift violated the Establishment Clause 
of the First Amendment. The plaintiff claimed that its 
members were injured in the form of “deprivation] of 
the fair and constitutional use of [their] tax dollar.” 454 
U.S. at 476. The Court concluded that the organization 
had not “ alleged an injury of any kind, economic or other­
wise, sufficient to confer standing.” 454 U.S. at 487 
(footnote omitted) (emphasis in original). The organiza­
tion alleged no nexus between itself or its members and 
the challenged government action: “ [The organization] 
complaints] of a transfer of property located in Chester 
County, Pa. The named plaintiffs reside in Maryland and 
Virginia; their organizational headquarters are located in



24

Washington, D.C. They learned of the transfer through 
a news release.” 454 U.S. at 486-87 (footnote omitted).

It does petitioners no credit to claim that the respond­
ents here have no more than the same “generalized 
grievances about the conduct of government” that the 
Court attributed to plaintiffs in Valley Forge. Respond­
ents here are the schoolchildren who suffer a denial of 
equal protection when the Revenue Service subsidizes 
segregated schooling in their school districts. The court 
in Valley Forge distinguished Abington School District v. 
Schempp, 374 U.S. 203 (1963) on the ground that the 
plaintiffs in the latter case were “school children and 
their parents, who were directly affected by the laws and 
practices against which their complaints are directed” 
which “ interests surely suffice to give the parties stand­
ing to complain.” 454 U.S. at 486-87 n.22, quoting from 
374 U.S. at 224 n.9. Respondents here are likewise school- 
children and their parents and are directly affected by 
the practices against which their complaints are directed.16

C. Petitioners’ Subsidiary Standing Arguments Are 
Erroneous.

Federal petitioners are in error when they suggest that 
respondents somehow seek standing as representatives of 
other members of their race who may have suffered in­
juries. Fed. Pet. Br. at 28 n.24. Respondents do not seek 
to represent black people in general, or black children 
who have been denied admission to discriminatory private 
schools. Respondents assert a claim on their own behalf, 
and others similarly situated, as black public school-

16 The present case is readily distinguished from Schlesinger v. 
Reservists Committee to Stop the War, 418 U.S. 208 (1974) and 
United States v. Richardson, 418 U.S. 166 (1974), in which no 
citizen had any greater interest than any other in asserting the 
rights at issue. Respondents do not assert a generalized right of 
all American citizens, but their particularized, enforceable right to 
equal educational opportunity for their children.



25

children whose rights to equal educational opportunities 
are impaired when the federal government supports dis­
criminatory private schools in their own communities.

Nor do repondents complain of injury as taxpayers or 
seek “taxpayer standing.” It is therefore immaterial that 
they have not alleged an effect on their own tax liability 
by the government conduct they challenge. See Fed. Pet. 
Br. at 12. Neither do respondents seek to “ litigate the 
tax liability of third parties.” Fed. Pet. Br. at 36-43. 
Respondents seek no judicial relief directed against any 
third party. They seek, instead, an injunction against the 
government’s grant of tangible financial aid, in the form 
of tax benefits, to discriminatory private schools. The 
grant of such relief does not determine the tax liability 
of any third person.

Finally, the government’s brief is far removed from 
reality when it suggests that respondents are merely dis­
satisfied bystanders at a public debate of high-minded 
matters of tax policy. See Fed. Pet. Br. at 43. Respond­
ents are no bystanders. They are the victims of a govern­
ment policy of granting aid to private discrimination. 
But for the judicial relief sought and obtained by the 
respondent victims, the government would have returned 
to the interpretation of the Internal Revenue Code it 
adhered to prior to the filing of Green, namely, that dis­
criminatory schools are entitled to tax exemptions. On 
January 8, 1982, while the petitions for certiorari in this 
case were pending, the IRS announced just such a policy 
and stated its intent to grant tax exemptions to two 
schools that had been determined to discriminate on the 
basis of race, Bob Jones University and Goldsboro Chris­
tian Schools. Only after respondents in this case had 
sought and obtained an order of the Court of Appeals 
directing the IRS not to grant or restore tax-exempt 
status to schools that failed to maintain a racially non- 
discriminatory policy as to students, did the government 
abandon its plan to restore and maintain tax-exempt



2 6

status for discriminatory private schools. See Bob Jones 
University v. United States, 103 S. Ct. at 2025 n.9.

The history of this case makes plain that, unless the 
victims of unlawful government aid to private discrimina­
tion have standing to complain of the injury inflicted by 
such government aid, Brawn's promise of equal oppor­
tunity is hollow.

D. The Government’s Concession That the Plaintiffs in 
Norwood Had Standing Is Tantamount to a Concession 
That Respondents Here Have Standing As Well.

The government concedes that the plaintiffs in Norwood 
had standing, but argues that their standing arose only 
“by virtue of their position as successful litigants in a 
related desegregation suit; their injury was the State’s 
interference with their rights under the decree.” Fed. 
Pet. Br. at 45; see id. at 18. In other words, the govern­
ment concedes that some black schoolchildren have stand­
ing to bring the instant action, but seeks to limit the class 
of those who have standing to plaintiffs who were parties 
to an earlier school desegregation order. That limitation, 
however, cannot logically bar standing for members of 
a certified plaintiff class in a desegregation suit who 
indisputably have the same status and concrete interest 
as named plaintiffs in terms of being bound by, and 
having a right to enforce, a judgment.17 Moreover, in the 
nature of a school desegregation order, “non-party” black 
schoolchildren in the community benefit as a matter of 
right:

17 See Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) in 
which the Court, held that a class of unnamed persons described 
in a class, certification acquired a legal status, separate from the 
interests asserted by the named representative, which satisfied 
the Article III requirement. Accord, Sosna v. Iowa, 419 U.S. 393 
(1975).



27
There is at least considerable doubt that relief con­
fined to individual specific Negro children either 
could be granted or, if granted, could be so limited 
in its operative effect. By the very nature of the 
controversy, the attack is on the unconstitutional 
practice of racial discrimination. Once that is found 
to exist, the Court must order that it be discontinued. 
Such a decree, of course, might name the successful 
plaintiff as the party not to be discriminated against. 
But that decree may not— either expressly or im­
pliedly— affirmatively authorize continued, discrimi­
nation by reason of race against others * * *. [Potts 
v. Flax, 313 F.2d 284, 289 (5th Cir. 1963) (em­
phasis added).]
Accord, Bailey v. Patterson, 323 F.2d 201, 206-07 
(5th Cir. 1963), cert, denied sub nom. Jackson v. 
Bailey, 376 U.S. 910 (1964).

The fact that all black public schoolchildren have a 
concrete interest in a school desegregation order respect­
ing their schools completely undercuts the government’s 
attempt to limit the effect of its concession that the plain­
tiffs in Norwood had standing.18 Respondent Herbert H.

18 The sentence in a footnote in Gilmore on which the govern­
ment rests its attempted limitation is not inconsistent with the 
fundamental principleis cited in the text. That sentence—which 
recited that “ [t]he plaintiffs in Norwood were parties to a school 
desegregation order and the relief they sought was directly related 
to the concrete injury they suffered” , 417 U.S. at 570-71 n.10—did 
not purport to articulate a new principle of standing. The footnote 
grew out of the distinction between the standing of black citizens 
to enjoin exclusive use of the city’s parks by segregated private 
schools (which was unquestioned in Gilmore) and the standing of 
citizens in a parks case to challenge certain nonexclusive uses of 
the parks by private school groups (which was questioned in Gil­
more). In the sentence quoted by the government and those which 
follow it, the Court carefully distinguished the situation of minority 
schoolchildren litigants seeking to enjoy the benefits of school 
desegregation:

The plaintiffs in Norwood were parties to a school desegrega­
tion order and the relief they sought was directly related to the



28

Jackson is a member of the certified plaintiff class in the 
Boston school desegregation litigation,19 and would have 
standing even under the government’s narrow formula­
tion of its limitation. Moreover, respondents Inez Wright, 
Geneva Walker, Delores G. Beamon, Mary Louise Belser, 
Etherline House, Lou Ella Jackson, John Wilbur Wright, 
Lavinia Washington, Robert Jackson, Moses Williams, 
Fred and Betty Bracy, Alma Lee and Darnell Griffin, 
Elsie R. Walker, and Anna G. Miller live in districts in 
which schools are desegregating pursuant to court order. 
See supra pp. 6-9. As the special beneficiaries of such 
orders, they have an interest that is more than ade­
quate to establish a basis for intervention as of right 
under Fed. R. Civ. P. 24(a), and they would, if the other 
prerequisites were satisfied, be entitled to intervene to 
enforce the outstanding desegregation decrees in their 
communities.20 Finally, the other respondents reside in

concrete injury they suffered. Here, the plaintiffs were parties 
to an action desegregating’ 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 result in cognizable injury 
to these plaintiffs. [Id.]

Viewed in context, therefore, the statement in the footnote 
cannot be read as an indication that the Norwood plaintiffs’ stand­
ing flowed only from their status as parties to a school desegrega­
tion case. The use o f the term “parties”  in the sentence upon which 
the government relies was merely for the purpose of contrasting 
the Norwood plaintiffs’ relationship to a school desegregation case 
with the Gilmore plaintiffs’ relationship to a parks desegregation 
suit.

19 See supra p. 9; Morgan v. Henningan, 879 F. Supp. 410, 415 
n.l (D. Mass,), aff’d, 509 F.2d 580 (1st Cir. 1974), cert, denied, 421 
U.S. 963 (1975).

20 E.g., Tasby V. Estes, 572 F.2d 1010, 1012 n.2 (5th Cir. 1978), 
cert, dismissed sub nom. Estes V. Metropolitan Branches of the 
Dallas NAACP, 444 U.S. 437 (1980) ; Atkins V. State Bd. of Educ., 
418 F.2d 874 (4th Cir. 1969); Liddell V. Caldwell, 546 F.2d 768, 
770 (8th Cir. 1976), cert, denied, 433 U.S. 914 (1977) ; United



29

districts where school desegregation was begun in connec­
tion with HEW administrative proceedings, as a result of 
which they have rights and interests no less concrete than 
persons who reside in districts where desegregation results 
from a court order. See Lee V. Macon County Board of 
Education, 267 F. Supp. 458, 475 (M.D. Ala.), aff’d sub 
nom. Wallace v. United States, 389 U.S. 215 (1967) (per 
curiam) .

In sum, the government’s brief itself illustrates the 
soundness of respondents’ position that there is no princi­
pled basis on which this case can be distinguished from 
Norwood. Accordingly, just as the plaintiffs in Norwood 
had standing to complain of the government’s grant of 
textbooks to discriminatory private schools in their com­
munities, respondents here have standing to complain of 
the government’s grant of tax benefits to private discrimi­
natory schools formed or expanded in their communities 
at the time of the initiation of desegregation of the public 
schools respondents attend.

States V. State of Georgia, 428 F.2d 377 (5th Cir. 1970); Brown 
V. Board of Educ., 84 F.R.D. 383, 397 (D. Kan. 1979). See also 
Miller v. Board of Educ. of Topeka, 667 F.2d 946 (10th Cir. 1982) 
(intervention in ongoing desegregation litigation rather than inde  ̂
pendent action is appropriate procedure for parents dissatisfied 
with lack of desegregation achieved under prior remedial orders); 
Hines V. Rapides School Bd., 479 F.2d 762, 765 (5th Cir. 1973) 
(same).



30

CONCLUSION
For the reasons stated herein, the judgment of the 

Court of Appeals should be affirmed.

Respectfully submitted,

R obert H. Kapp *
Sara-A n n  Determan 
Joseph M. Hassett 
David S. Tatel 
W alter A. Sm ith , Jr . 
Patricia A. Brannan  

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

W illiam  L. R obinson 
Norman J. Ch ach kin  
F rank  R. Parker 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Respondents
* Counsel of Record