Allen v. Wright Brief for Respondents
Public Court Documents
October 3, 1983

Cite this item
-
Brief Collection, LDF Court Filings. Allen v. Wright Brief for Respondents, 1983. a1c6b77e-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d526ab70-0f75-4717-9d1d-669df0f7907d/allen-v-wright-brief-for-respondents. Accessed July 13, 2025.
Copied!
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