Allen v. Wright Brief in Opposition to Certiorari

    Nos. 81-757 and 81-970

In The

Buptm? (to rt ni tip Inttefr
October Term, 1981

W . W ayne Allen,
v Petitioner,

Inez W right, et al.

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

Inez W right, et al.

On Petitions for Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF IN OPPOSITION TO CERTIORARI

R obert H. K app  *
Sara -A n n  D eterm an  
Joseph  M. H assett  
David  S. T atel  
George H. M e r n ic k , III 

H ogan & H artson  
815 Connecticut Avenue, N.W. 
Washington, D.C. 20006 
(202) 331-4500

W il l ia m  L. R obinson  
N orm an  J. Ch a c h k in  
F r a n k  R. P ark er

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



COUNTER-STATEMENT OF QUESTION PRESENTED

Whether black schoolchildren attending public schools 
in desegregating districts have standing to challenge the 
grant o f federal tax exemptions to segregated private 
schools created or expanded in the wake o f public school 
desegregation?

(i)



TABLE OF CONTENTS

Counterstatement of the Case .................................... —. i

Table of Authorities .................. ..........................................  iv
Summary of Argum ent.......................................................  5
Reasons for Denying the Writ _____ __________ _______ 6
Conclusion .............................................................................. . 12

TABLE OF AUTHORITIES
Cases

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.
1973) (per curiam) ................ ........................ ...... 4n

Brown v. Board of Educ., 347 U.S. 483 (1954).....  6
Brown v. South Carolina State Bd. of Educ., 393 

U.S. 222 (1968), aff’g per curiam 296 F. Supp.
199 (D.S.C. 1968) ....... ........ ........................ .......... 6

Brumfield v. Dodd, 405 F. Supp. 338 (E.D. La.
1975) .................. ............................................. ..........  3n

Bush v. Orleans Parish School Bd., 368 U.S. 515 
(1962), aff’g 187 F. Supp. 42, 188 F. Supp. 916
(E.D. La, 1961) ........... ......................... ........... „ ..... 6

Civil Rights Cases, 109 U.S. 3 (1883) ____ ______ 9
Coffey v. Mississippi State Educ. Fin. Comrn’n,

296 F. Supp. 1389 (S.D. Miss, 1969) (three-
judge court) ........ ........................................ ...........  7n

Cooper v. Aaron, 358 U.S. 1 (1958) _____________ 6
Davis v. Passman, 442 U.S, 228 (1979) _______ _ 9n, 10
Driver v. Tunica County School Dist,, 440 F.2d 377 

(5th Cir. 1971), aff’g 323 F. Supp. 1019 (N.D.
Miss. 1970) ............. ........ ........................... ........... . 7n

Eastern Kentucky Welfare Rights Organization v.
Simon, 506 F.2d 1278 (D.C. Cir. 1974), rev’d on
other grounds, 426 U.S. 26 (1976) ____________ l ln

Faubus v. Aaron, 361 U.S. 197 (1959), aff’g Aaron 
v. McKinley, 173 F. Supp. 944 (E.D. Ark. 1959).. 6

Gilmore v. City of Montgomery, 417 U.S. 556
(1974) ...................................................................................... - ......... ................... . . . . . . 6, 7, lOn

Page

(iii)



IV

Green v. Connally, 330 F. Supp. 1150 (D.D.C.), 
aff’d sub nom. Coit v. Green, 404 U.S. 997

TABLE OF AUTHORITIES— Continued
Page

Green v. Kennedy, 309 F. Supp. 1127 (D.D.C.), 
appeal dismissed sub nom. Cannon v. Green, 398
U.S. 956 (1970) _____ _______ _____________ __  2, 7n

Green v. Regan, Civ. No. 1355-69 (D.D.C., May 5
and June 2, 1980) .................... ..................... ..........  3n

Griffin v. County School Bd., 377 U.S. 218 (1964).. 6
Griffin v. State Bd. of Educ., 239 F. Supp. 560

(E.D. Va. 1965) ..................................... ................  7n
Hall v. St. Helena Parish School Bd., 368 U.S. 515

(1962), aff’g 197 F. Supp. 649 (E.D. La. 1961).. 6
Hunter v. Erickson, 393 U.S. 389 (1969) ___ ____ 10
Investment Annuity, Inc. v. Blumenthal, 609 F.2d

1 (D.C. Cir. 1979) ........... ................... ............. 1 In
McGlotten v. Connally, 338 F. Supp. 448 (D.D.C.

1972) (three-judge court) .... ................. .............. l ln
Norwood v. Harrison, 413 U.S. 455 (1973) ______  6, 8, 9
Norwood v. Harrison, 382 F. Supp. 921 (N.D.

Miss. 1974), on remand from 413 U.S. 455
(1973) ............ ................ .............................. ............  3n

Pennsylvania v. Board of Directors of City Trusts,
353 U.S. 230 (1957) ....... .................. ................... 6

Poindexter v. Louisiana Fin. Assistance Comm’n,
389 U.S. 571 (1968), aff’g per curiam 275 F.
Supp. 833 (E.D. La. 1967) ....... ........ .................... 6

Runyon v. McCrary, 427 U.S. 160 (1976) _______  8
Schlesinger v. Reservists to Stop the War, 418 U.S.

208 (1974) ___________ ________ ____ ________ _ lOn
Sierra Club v. Morton, 405 U.S. 727 (1972) ..... . 6
Simon v. Eastern Kentucky Welfare Rights Organi­

zation, 426 U.S. 26 (1976) ............................. . 5, 8, 9
Slaughter-House Cases, 83 U.S. 36 (1873) ..............  9-10
Strauder v. West Virginia, 100 U.S. 303 (1880).... 7n 
United States v. Mississippi, 499 F.2d 425 (5th

Cir. 1974) (en banc) ....... .....................................  6n
United States v. Richardson, 418 U.S. 166 (1974) .. 9n



V

Wallace v. United States, 889 U.S. 215 (1967), 
aff’g Lee v. Macon County Bd. o f Educ., 267
F. Supp. 458 (M.D. Ala. 1967) .............. ..............  6

Wright v. City of Brighton, 441 F.2d 447 (5th 
Cir.), cert, denied, 404 U.S. 915 (1971) ..... ....... 6n-7n

Statutes, Regulations and Other Authorities
26 U.S.C. § 7421 (a) ..... .......... ......................... ......... l ln
Rev. Proc. 75-50, 1975-2 C.B. 587 ______ _______ 8n
Rev. Proc. 71-447, 1971-2 C.B. 230 ___ __________  2n
1981-37 I.R.B. (Sept. 1981) ....... .................. ............ 3n
IRS News Release (July 10, 1970), 7 Stan d . Fed.

T a x  R e p . (C C H ) If 6790 ....................................... . 2n
Hearings Before the Subcommittee on Oversight 

of the House Committee on Ways and Means,
96th Cong., 1st Sess. (1979) _________ __ ____ _ 3

TABLE OF AUTHORITIES— Continued
Page



I n T he

g’Hjtmttr (tort of %  Inxtrb Stairs
October Term, 1981

No. 81-757 
W, W ayne Allen,

Petitioner,
v.

Inez W right, et al.

No. 81-970
Donald T. Regan, Secretary of the Treasury, et al,

Petitioners,
v.

Inez W right, et al.

On Petitions for Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF IN OPPOSITION TO CERTIORARI

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, on their 
own behalf and on behalf of others similarly situated, in



2

the United States District Court for the District of Co­
lumbia seeking to enjoin the federal petitioners (the Sec­
retary of the Treasury and the Commissioner of Internal 
Revenue) from providing federal support—in the form 
of exemptions from federal income taxation (pursuant to 
Section 501 of the Internal Revenue Code of 1954) and 
the consequent deductibility from individual income of 
contributions— to racially segregated private schools serv­
ing desegregating public school districts.

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) in which it was held that the In­
ternal Revenue Code does not permit the grant of tax 
exemptions to private schools which discriminate on the 
basis of race. The court in Green recognized that, be­
cause of “ the constitutional inhibitions” on government 
aid to racial discrimination, any other construction of the 
Code would present “ serious constitutional claims.”  330 
F. Supp. at 1165.

After the issuance of a preliminary injunction in Green, 
309 F. Supp. 1127 (D.D.C. 1970), the IRS announced the 
abandonment of its prior practice of according tax-exempt 
status to racially discriminatory private schools and 
adopted the position that such schools are not entitled to 
tax exemption.1 Respondents allege in the instant action 
that, notwithstanding Green and the IRS change of posi­
tion, the IRS in fact permits schools that do discriminate 
on the basis of race to receive tax exemptions simply by 
adopting—but not implementing—a “policy” of non-dis­
crimination. Subsequent to the filing of the instant action 
by respondents, the Commissioner of Internal Revenue 
conceded that its procedures are ineffective. Commissioner 
Jerome Kurtz has testified that:

We concluded that the Service’s procedures were in­
effective in identifying schools which in actual opera­

1 IRS News Release (July 10, 1970), 7 Stand. Fed. Tax Rep. 
(CCH) ff 6790, codified in Rev. Proc. 71-447, 1971-2 C.B. 230.



3

tion discriminate against minority students, even 
though the schools may profess an open enrollment 
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 even though they have been held by 
Federal courts to be racially discriminatory. This 
position is indefensible.2

2 Hearings Before the Subcommittee on Oversight of the House 
Committee on Ways and Means, 96th Cong., 1st Sess. 5 (1979) 
(statement of Jerome Kurtz). Commissioner Kurtz was referring 
to Mississippi private schools held ineligible for state textbook 
assistance under the standards applied in Norwood v. Harrison, 
382 F. Supp. 921 (N.D. Miss. 1974), on remand from  413 U.S. 455 
(1973). See also Brumfield v. Dodd, 405 F. Supp. 338 (E.D. La. 
1975).

The three-judge court in Green v. Connally, supra, had described 
all-white Mississippi private schools founded about the time of 
public school desegregation in that State as “ carrying a badge o f 
doubt.”  330 F. Supp. at 1173. The district court in Norwood had 
ruled that coincidence between an all-white school’s formation or 
expansion and the time of public school desegregation established 
a presumption that the school followed a racially discriminatory 
policy (whether or not reduced to w riting)— a presumption which 
the school had the burden of rebutting by objective evidence if  it 
wished to participate in the textbook program. 382 F. Supp. at 
924-26. Nevertheless, the Service refused to adopt these principles 
when it reconsidered its policy in this area in 1975. Nee Rev. Proc. 
75-50, 1975-2 C.B. 587.

As a result, schools held discriminatory and ineligible for text­
book assistance in Norwood continued to enjoy exemption from fed­
eral income taxation when this action was filed in 1976. Further 
proceedings in the Green litigation, which was reopened at the 
same time for the purpose of enforcing the 1971 decree, resulted 
in the entry of orders in 1980 requiring IRS to apply Norwood- 
type standards to Mississippi schools, Green v. Regan, Civ. No. 
1355-69 (May 5 and June 2, 1980), and pursuant to those orders 
the IRS in 1981 revoked the exempt status of several private schools 
in Mississippi which earlier had been ruled ineligible for state- 
furnished textbooks. See 1981-37 I.R.B. 102 (Sept. 14, 1981) ; 
Report by Defendant of Steps Taken to Implement the Injunctive



4

As recognized at pages 4-5 of the government’s peti­
tion, the Revenue Service decided to replace this “ inde­
fensible” position with new standards which it announced 
in a proposed Revenue Procedure published August 22, 
1978, but the adoption of any further procedures has 
since been stalled by congressional enactment of riders 
to appropriations bills. Except for Mississippi schools, 
see note 2 supra, IRS has continued, therefore, to recog­
nize as tax exempt any private school which “profess [es] 
an open enrollment policy and compl [ies] with the yearly 
publication requirement of Revenue Procedure 75-50.” 
The relief sought by plaintiffs in this action would re­
quire the Revenue Service to implement procedures that 
are effective to prevent the grant of tax exemptions to 
schools that admittedly discriminate 3 in violation of their 
professed, but not implemented, policy of non-discrimina­
tion.4

Decree of this Court, Green v. Regan, supra, filed July 1, 1981, at 
2- 6.

3 Petitioners’ contentions that respondents do- not allege that any 
o f the schools are actually discriminating fail to acknowledge the 
plain import of the allegation that schools enjoying federal tax 
exemption are not in fact implementing their professed policy of 
non-discrimination (Complaint, |j 2 ). The complaint also alleges 
that “ [m]any of the private schools described in the foregoing 
paragraphs have been found to discriminate on the basis of race . . .”  
(Complaint, 22).

4 The relief sought by the plaintiffs is similar to that described 
by the Court o f Appeals for the District of Columbia Circuit, sit­
ting en banc, in Adams v. Richardson, 480 F.2d 1159, 1163-64 
(1973) (per curiam) :

The injunction does not direct the termination o f any funds, 
nor can any funds be terminated prior to a determination of 
noncompliance. In this suit against the agency, in contrast to 
actions brought against individual school systems, our pur­
pose, and the purpose of the District Court order as we under­
stand it, is not to resolve particular questions of compliance



5

Prior to the commencement of discovery, the District 
Court granted a motion to dismiss the complaint, pri­
marily on grounds of lack of standing. The Court of Ap­
peals reversed, holding that plaintiffs do have standing, 
and that neither the doctrine of “ non-reviewability” nor 
the congressional appropriations riders, on which the Dis­
trict Court had also relied, provide a basis for dismissing 
the complaint.

SUMMARY OF ARGUMENT

The holding below sustaining respondents’ standing to 
sue is based on settled precedent of this Court in eases 
challenging state aid to racially segregated schools. Since 
respondents’ injury flows directly from the provision of 
federal tax benefits to such schools, Simon V. Eastern 
Kentucky Welfare Rights Organization, 426 U.S. 26 
(1976) is distinguishable. Denial of standing to respond­
ents to enjoin tax exemptions to private schools would 
render the equal protection component of the Fifth 
Amendment a nullity.

The other questions raised by petitioners should not 
be addressed at this stage of the proceedings. * 8

or noncompliance.5 It is, rather, to assure that the agency 
properly construes its statutory obligations, and that the pol­
ices it adopts and implements are consistent with those duties 
and not a negation of them.6

8 Far from dictating the final result with regard to any of 
these districts, the order merely requires initiation of a process 
which, excepting contemptuous conduct, will then pass beyond 
the District Court’s continuing control and supervision. The 
school districts must be notified of the purpose to terminate and 
be given a hearing. 45 C.F.R. § 80 .8 (c). . . .

6 This action is consistent with the nature of judicial review 
exercised in other situations, [citations omitted.]



REASONS FOR DENYING THE WRIT
I.

The holding of the Court of Appeals that respondents 
have standing to sue reflects the correct application of 
settled principle. There is no need for further elaboration 
by this Court.

A.
The starting point for standing analysis is injury. 

Sierra Club v. Morton, 405 U.S. 727, 733 (1972). Re­
spondents are parents of black school children who com­
plain of, and seek to enjoin, government aid to private 
schools in their communities which are alleged to be ra­
cially discriminatory and to interfere with desegregation 
of local public school systems.5 6 * It is bedrock constitutional 
law that government aid to racially segregated schools 
“ through any arrangement, management, funds, or prop­
erty” deprives black children and their parents of the 
equal protection of the laws and is forbidden. Cooper v. 
Aaron, 358 U.S. 1, 4 (1958), construing Brown v. Board 
of Educ., 347 U.S. 483 (1954). See Gilmore v. City of 
Montgomery, 417 U.S. 556 (1974) ; Norwood v. Harrison, 
413 U.S. 455 (1973) ; Brown v. South Carolina State Bd. 
of Educ., 393 U.S. 222 (1968), aff’g per curiam 296 F. 
Supp. 199 (D.S.C. 1968); Poindexter v. Louisiana Fin. 
Assistance Comm’n, 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 (1967), aff’g Lee v. Macon County 
Bd. of Educ., 267 F. Supp. 458 (M.D. Ala. 1967) ; Grif­
fin v. County School Bd., 377 U.S. 218 (1964) ; Hall v. St. 
Helena Parish School Bd., 368 U.S. 515 (1962), aff’g 197 
F. Supp. 649 (E.D. La. 1961) ; Bush v. Orleans Parish 
School Bd., 365 U.S. 569 (1961), aff’g 187 F. Supp. 42, 
188 F. Supp. 916 (E.D. La. 1961); Faubus v. Aaron, 361 
U.S. 197 (1959), aff’g Aaron v. McKinley, 173 F. Supp. 
944 (E.D. Ark. 1959) ; Pennsylvania v. Board of Di­
rectors of City Trusts, 353 U.S. 230 (1957).8 That is

5 Complaint, j[ 4.
6 See also United States v. Mississippi, 499 F.2d 425 ( 5th Cir.

1974) ( en bane) ; Wright v. City of Brighton, 441 F.2d 447 (5th

6



7

why, in circumstances analogous to the instant case, the 
parents of the black schoolchildren in Norwood v. Harri­
son, supra, had standing to challenge the state’s practice 
of lending textbooks to students in private schools that 
practiced racial discrimination. There, as here, mem­
bers of the group subjected to the discrimination had 
standing to sue to enforce the government’s “ constitu­
tional obligation . . .  to steer clear . . .  of giving signifi­
cant aid to institutions that practice racial or other in­
vidious discrimination.” 413 U.S. at 467. Accord, Gil­
more v. City of Montgomery, supra.'1 There is nothing 
new or expansive about the decision of the Court of Ap­
peals that plaintiffs have standing, similar to that of the 
plaintiffs in the companion case of Green v. Connally, 
supra to challenge government aid to private discrimina­
tion that injures them.* * * * * 7 8

Cir.), cert, denied, 404 U.S. 915 (1971) ; Driver v. Tunica County
School Dist., 440 F.2d 377 (5th Cir. 1971), aff’g 323 F. Supp. 1019
(N.D. Miss. 1970); Coffey v. Mississippi State Educ. Fin. Comm’n,
296 F. Supp. 1389 (S.D. Miss. 1969) (three-judge court) ; Griffin v.
State Bd. of Educ., 239 F. Supp. 560 (E.D. Va. 1965).

7 The opinion below emphasizes the “ denigration [plaintiffs] 
suffer as black parents and schoolchildren when their government 
graces with tax-exempt status educational institutions in their 
communities that treat members o f their race as persons o f lesser 
worth,”  656 F.2d 827, Allen Pet. App. 13b; see also id. at 829 n.24, 
Allen Pet. App. 17b n.24, and the fact that “government support . . . 
stigmatizes black schoolchildren and their parents by signaling 
official approbation of educational institutions that perpetuate in 
local communities notions, once prevalent in our nation, of the 
inferior quality of the black race,”  656 F.2d at 836-37, Allen Pet. 
App, 34b. This analysis echoes the decisions of this Court inter­
preting the Fourteenth Amendment. See, e.g., Strauder v. West 
Virginia, 100 U.S. 303, 308 (1880) (Fourteenth Amendment affords 
blacks “ the right to exemption from unfriendly legislation against 
them distinctively as colored; exemption from legal discriminations, 
implying inferiority in civil socfety . . .).

8 The standing issue was specifically addressed in Green in con­
nection with the Court’s ruling on a motion for a preliminary 
injunction. 309 F.Supp. 1127, 1132 (D.D.C.) (three-judge court), 
appeal dismissed sub nom. Cannon v. Green, 398 U.S. 956 (1970).



B .

Petitioners* contention that the instant case should be 
governed by Simon v. Eastern Kentucky Welfare Rights 
Organization, 426 U.S. 26 (1976), overlooks the fact that 
that case involved a completely different kind of injury 
from that involved here. The plaintiffs in that case were 
indigents who complained that they were being denied 
medical treatment by hospitals that were, nonetheless and 
contrary to the interpretation of the Internal Revenue 
Code urged by the plaintiffs, accorded tax-exempt status 
as charities. This Court held that plaintiffs lacked stand­
ing, reasoning that 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 41- 
42. 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 42.

In sharp contrast to Eastern Kentucky, the injury com­
plained of here flows directly from the unconstitutional 
conduct of the Revenue Service and would be immediately 
redressed by grant of the relief sought. Plaintiffs do not 
seek, in this lawsuit, either as relief or as a consequence 
of the relief awarded, admission to private schools which 
effectively exclude black students. Nor do they seek to 
compel the United States government to take any actions 
to change the racially discriminatory policies of any pri­
vate schools. Cf. Runyon v. McCrary, 427 U.S. 160 
(1976). Rather, their position is that while such schools 
may continue to exist, they may not receive tangible gov­
ernment support. The federal courts have the power and 
duty to redress their injury by ordering the Revenue Serv­
ice 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
tucky, but by Norwood v. Harrison, supra, where this



9
Court held that the district court erred in thinking that 
plaintiffs were required to show that termination of the 
free textbooks would cause students to transfer from pri­
vate to public schools. Chief Justice Burger, writing for 
the Court, explained:

We do not agree with the District Court in its analy­
sis of the legal consequences of [the] uncertainty 
[whether the relief requested would result in student 
transfers from private to public schools], for the 
Constitution does not permit the State to aid discrim­
ination even when there is no precise causal relation­
ship 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 tendency to fa­
cilitate, reinforce, and support private discrimination.

Like the black parents in Norwood, plaintiffs here have 
standing to seek an end to government aid to private dis­
crimination because such government aid in and of itself 
injures them. The difference between Eastern Kentucky 
and Norwood is not a conflict in legal principle between 
two decisions of this Court, but simply a factual differ­
ence in the kinds of injury alleged in the two cases. The 
decision of the Court of Appeals in this case simply—and 
correctly— chose the precedent that fits the facts of this 
case. There is no need or justification for review.

C.
The contentions advanced by the petitioners, while 

clothed in Article III “standing” terms, are also funda­
mentally inconsistent with the equal protection clause of 
the Fourteenth Amendment.9 The central purpose of that 
amendment was to protect black citizens from government- 
supported racial discrimination. Civil Rights Cases, 109 
U.S. 3, 10-11 (1883) ; Slaughter-House Cases, 83 U.S. 36,

9 This Court has consistently held that the due process clause of 
the Fifth Amendment embodies the same equal protection principles 
as does the Fourteenth Amendment. E.g., Davis v. Passman, 442 
U.S. 228, 234 (1979), and cases cited.



10
67-72 (1873).10 This objective cannot be accomplished if 
black parents and schoolchildren in desegregating public 
school districts can secure judicial relief only against the 
private schools practicing racial discrimination but cannot 
restrain governmental agencies which are providing es­
sential financial support for these institutions.11 Such a 
rule renders the Fourteenth Amendment an empty prom­
ise and overrules firmly established precedent.12 13 *

It is no answer to suggest, as the government does, that 
respondents should be remitted to the Congress (U.S. Pet. 
at 20-21). The guarantees of the equal protection clause 
are personal and immediate; they are not subject to pop­
ular vote, e.g., Hunter v. Erickson, 393 U.S. 389 (1969) ; 
and equal protection does not mean that black citizens 
must depend upon state legislatures or Congresses elected 
by the majority race for vindication of their rights. See 
Davis v. Passman, 442 U.S. 228, 239, 241-42 (1979);18

10 Unlike the constitutional provisions involved in Schlesinger v. 
Reservists to Stop the War, 418 U.S, 208 (1974) and United States 
v. Richardson, 418 U.S. 166 (1974), which created “ undifferentiated 
right[s] common to all members of the public” (U.S. Pet. at 15), 
therefore, the Fourteenth Amendment (and, by extension, the equal 
protection component of the Fifth Amendment’s due process clause) 
was added to the constitutional text to safeguard an identifiable 
segment of the citizenry: blacks, the same class to which respond­
ents belong. For somewhat similar reasons, the government’s sug­
gested distinction of Norwood and Gilmore (U.S. Pet. at 17-18) is 
ineffectual; respondents are all members o f the classes on whose 
behalf local public school desegregation was required by court decree 
or administrative agency action.

11 In his application for intervention, petitioner Allen alleged 
that “ [t]he revocation o f tax exempt status would greatly injure 
the ability of Briarcrest [the private school to which Allen sends 
his children] to raise funds for any capital purposes, including 
improvements and expansion of educational facilities, and would 
substantially increase the effective net cost thereof . . . .”  Motion 
to Intervene as a Defendant, [} 4.

12 See cases cited at p. 6 supra.
13 No avenue of review except this action is available to respond­

ents. See U.S. Pet. at 19-20.



11

II.
Review of the two other points advanced by petitioners 

is both unnecessary and, in any event, premature. First, 
as to the contention that the award of relief to respond­
ents will deeply enmesh the Judiciary in the administra­
tion of the tax laws, the Court of Appeals rightly said 
that, “ should [respondents] succeed on the merits, the 
remedial problem can be handled without large scale ju­
dicial intervention in the administrative process.” 14 The 
relief sought runs against the Revenue Service, does not 
seek to enjoin the assessment or collection of taxes,15 and 
is much simpler to administer than other kinds of relief 
equity courts are frequently called upon to grant. As the 
Court of Appeals noted, the current IRS guidelines were 
adopted from the court’s 1971 injunctive order in Green™

Second, unless and until specific relief based upon a 
supporting record has been granted to plaintiffs at a time 
when the then governing appropriations for the Revenue 
Service purport to preclude the Service from giving effect 
to the relief, there is no need or wisdom in grappling with 
the “ [t] urhulent issues under our fundamental instrument 
of government” that the Court of Appeals rightly foresaw 
would be presented by such appropriations riders.17

m 656 F.2d at 837, Allen Pet. App, 35b. See also note 4 supra.

18 Petitioners’ reliance on the Anti-Injunction Act, 26 U.S.C. 
§ 7421(a), is misplaced, as that statute is inapplicable in a case 
where, as here, the relief requested would increase rather than 
restrain the assessment and collection of taxes. See Investment 
Annuity, Inc. v. Blumenthal, 609 F.2d 1, 5 n.14 (D.C. Cir. 1979), 
cert, denied, 446 U.S. 981 (1980); Eastern Kentucky Welfare Rights 
Organization v. Simon, 506 F.2d 1278, 1285-86 (D.C. Cir. 1974), 
rev’d on other grounds, 426 U.S. 26 (1976) ; McGlotten v. Connally, 
338 F.Supp. 448, 453-54 (D.D.C, 1972) (three-judge court).

i« 656 F.2d at 837 n.56, Allen Pet. App. 35b n.56.

”  Id.



12

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted,

R obert H. K app  *
Sa r a -A n n  Determ an  
Joseph  M. H assett  
D avid S. T atel  
George H. M e r n ic k , III 

H ogan & H artson  
815 Connecticut Avenue, NAV. 
Washington, D.C. 20006 
(202) 331-4500

W il l ia m  L. R obinson  
N o rm a n  J. Ch a c h k in  
F r a n k  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