Green v. Regan Petition for a Writ of Certiorari to the US Court of Appeals for the DC Circuit

    No. 81- (bT'ia

In  The

l§>itprrmr ( t a r t  nf tlu> Imtrib #tatrs
October Term, 1981

W illiam H. Green, et al,
Petitioners, v. ’

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

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

W illiam  L. Robinson 
N orman J. Chachk in  
F rank  R. P arker 

Lawyers’ Committee for 
Civil R ights U nder Law 

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

Robert H. Kapp 
J oseph M. Hassett 
Sara-An n  Determan 
David S. Tatel 
Walter A. Sm ith , J r.

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

Attorneys for Petitioners

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 !



QUESTION PRESENTED
Do Sections 170(a)-(c) and 501(c) (3) of the Internal 

Revenue Code of 1954, and the Fifth Amendment to the 
Constitution of the United States, permit the Secretary 
of the Treasury and Commissioner of Internal Revenue to 
grant tax-exempt status and deductibility of contributions 
to private schools which practice racial discrimination; 
should Coit v. Green, 404 U.S. 997 (1971), aff’g mem. 
Green v. Connolly, 330 F. Supp. 1150 (D.D.C. 1971), 
which holds that they do not allow exemptions to such 
schools, be overruled?

(i)



ii

PARTIES BELOW
Pursuant to Rule 21.1(b) of the Rules of this Court, 

petitioners state to the Court that the following parties 
have participated below in this cause:

Plaintiffs: William H. Green, on his own behalf and 
on behalf of his minor children Connie Green, Belinda 
Green, Ronnie Green, Janice Green, and Bessie Green; 
Vernon Tom Griffin, on his own behalf and on behalf of 
his minor son, Vernon Tom Griffin, Jr.; John D. Wesley, 
on his own behalf and on behalf of his minor children, 
Shirley Ann Wesley, Florence Wesley, and Jessie Lee 
Wesley; Warren G. Booker, on his own behalf and on 
behalf of his minor adopted son, Adam Wayne Gilley; 
and Essie Bernice Austin.

Defendants: Donald T. Regan, as Secretary of the 
Treasury of the United States; Roseoe Egger, as Com­
missioner of Internal Revenue.

Defendant-lntervenors: Dan Coit, on his own behalf 
and on behalf of his minor children, Lauren Faye Coit 
and Linda Ann Coit; and the Clarksdale Baptist Church, 
of Clarksdale, Mississippi.



TABLE OF CONTENTS
Page

Opinions Below----- -----,--------------------------------------  1

Jurisdiction......... ..........................................................—- 2

Constitutional and Statutory Provisions Involved.........  3

Statement of the C ase----- -------- ----- --------------------  4

REASONS FOR GRANTING THE W RIT...................  6

TABLE OF AUTHORITIES
Cases:

Bob Jones University v. United States, No. 81-3—. 5, 6, 7
Coit v. Green, 404 U.S, 997 (1971) .......................... 2, 7
Goldsboro Christian Schools, Inc. v. United States,

No. 81-1 ______________ ____ ____ ___ -............  5, 6, 7
Green v. Connally, 330 F. Supp. 1150 (D.D.C.), 

aff’d mem. sub nom. Coit v. Green, 404 U.S. 997
(1971) ...................... ....... ........... ............. ............ 2, 4, 6

Green v. Kennedy, 309 F. Supp. 1127 (D.D.C.), ap­
peal dismissed sub nom.. Cannon v. Green, 398
U.S. 956 (1970) ........................... - ................. ------ 2,4

Havens Realty Corp. v. Coleman, 50 U.S.L.W. 4232
(U.S. Feb. 24, 1982) ---------------- ----------------- 7

Hughes Tool Co. v. Trans World Airlines, Inc., 409
U.S. 363 (1973) .................... ....................... ...... - 7n

Mercer v. Theriot, 377 U.S. 152 (1964) .......... . 7n
United States v. Concentrated Phosphate Export

Ass’n, 393 U.S. 199 (1968)................. ........ .......  7
United States v. Nixon, 418 U.S. 683 (1974) .........  7
United States v. W.T. Grant Co,, 345 U.S. 629

(1953) ...... .......................... -............... -.......... - .....  7
West Virginia State Bd. of Educ. v. Barnette, 319

U.S. 624 (1943) ........ ........ ....... ........... - ............  7n
Wright v. Regan, D.C. Cir. No. 80-1124 (Feb. 18,

1982)  .................................................................. - 6n

(iii)



IV

TABLE OF AUTHORITIES—Continued 
Statutes: Page

28 U.S.C. § 1254(1) ..... .............. ................. ....... 1,3
28 U.S.C. § 1292(a)(1) ..........................- _____  2,7
28 U.S.C. §2101(3) ......... ..................... ..............  1

Regulations and Rules:
Sup. Ct. Rule 18............................................ ....... 3, 8n
Rev. Rul. 75-231, 1975-1 Cum. Bull. 158................  5n
Rev. Rul. 71-447, 1971-2 Cum. Bull. 230........    5n
Rev. Proc. 75-50, 1975-2 Cum. Bull. 587.........   5n
Rev. Proc. 72-54, 1972-2 Cum. Bull. 834 ......    5n



In  The

Bxxprmv ( t a r t  of %  Im trh
October Term, 1981

No. 81-

W illiam H. Green, et al,
Petitioners, v. ’

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

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners William H. Green, et al. respectfully pray 
that, pursuant to 28 U.S.C. §§ 1254(1) and 2101(3) and 
Rule 18 of the Rules of this Court, a writ of certiorari 
issue to review this matter prior to the issuance of judg­
ment in the court below.

OPINIONS BELOW

The Order of the United States District Court for the 
District of Columbia denying petitioners’ motion for fur­
ther injunctive relief was issued without opinion on 
February 4, 1982 and is reprinted in the Appendix 
hereto.



2

Prior reported opinions in this matter appear at 809 
F. Supp. 1127 (D.D.C.), appeal dismissed sub nom. Can­
non v. Green, 398 U.S. 956 (1970) (preliminary injunc­
tion) ; and 330 Supp. 1150 (D.D.C.), aff’d mem. sub 
nom. Coit v. Green, 404 U.S. 997 (1971) (declaratory 
judgment and permanent injunction).

JURISDICTION
On June 30, 1971, a three-judge United States District 

Court for the District of Columbia issued a declaratory 
judgment that Sections 170(a)-(c) and 501(c) (3) of the 
Internal Revenue Code of 1954 did not permit the grant 
of tax exemptions to racially discriminatory private 
schools and a permanent injunction against the Secretary 
of the Treasury and Commissioner of Internal Revenue 
requiring specific procedures to be followed by the Inter­
nal Revenue Service in passing upon the applications for 
such exemptions of private schools in Mississippi. This 
Court summarily affirmed the judgment sub nom. Coit 
v. Green, 404 U.S. 997 (1971). In 1976 petitioners sought 
further relief to enforce the original judgment, which 
was granted in part by district court orders of May 5 
and June 2, 1980. Thereafter, on January 13, 1982 peti­
tioners again moved for further injunctive relief in the 
district court in light of a public announcement by the 
respondent Secretary of the Treasury that exemptions 
would be granted to educational institutions which prac­
ticed racial discrimination.

Petitioners’ request for further injunctive relief was 
denied by the district court on February 4, 1982 (la). 
On February 5, 1982 petitioners filed a Notice of Appeal 
to the United States Court of Appeals for the District of 
Columbia Circuit; the appeal has been assigned D.C. Cir. 
No. 82-1134. The Court of Appeals has jurisdiction over 
the appeal pursuant to 28 U.S.C. § 1292(a) (1) since the 
district court has denied injunctive relief. Jurisdiction 
over the case in this Court is therefore provided by 28



3

U.S.C. § 1254(1); see Rule 18 of the Rules of this Court. 
No judgment has yet been rendered by the Court of 
Appeals.

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the 
United States provides as follows, in pertinent part:

No person . . . shall be . . . deprived of life, liberty, 
or property, without due process of law . . . .

Section 170 (a)-(c) of the Internal Revenue Code of 
1954, 26 U.S.C. § 170 (a)-(c) provides as follows, in per­
tinent part:

(a) Allowance of deductions
(1) General rule. There shall be allowed as a 

deduction any charitable contribution (as defined in 
subsection (c)) payment of which is made within 
the taxable year. . . .

(c) Charitable contribution defined. For purposes 
of this section, the term “charitable contribution” 
means a contribution or gift to or for the use of—

(2) A corporation, trust, or community chest, fund, 
or foundation—

(B) organized and operated exclusively for 
religious, charitable, scientific, literary, or edu­
cational purposes. . . .

Section 501(c)(3) of the Internal Revenue Code of 
1954, 26 U.S.C. § 501(c) (3), exempts from taxation the 
following organizations, inter alia:

(3) Corporations, and any community chest, fund, 
or foundation, organized and operated exclusively for 
religious, charitable, scientific, testing for public 
safety, literary, or educational purposes . . . .



4

STATEMENT OF THE CASE

This action was filed in 1969 to restrain the Depart­
ment of the Treasury and the Internal Revenue Service 
from affording federal tax-exempt status and deductibility 
of contributions to racially discriminatory private schools. 
On January 27, 1970, a three-judge district court issued 
a preliminary injunction, Green v. Kennedy, 309 F. Supp. 
1127 (D.D.C.), appeal dismissed sub nom. Camion v. 
Green, 398 U.S. 956 (1970) and on June 30, 1971 the 
court issued a declaratory judgment that, inter alia,

Section 501(c) (3) of the Internal Revenue Code of 
1954 does not provide a tax exemption for, and Sec­
tion 170 (a)-(c) of the Code, does not provide a 
deduction for a contribution to, any organization that 
is operated for educational purposes unless the school 
or other educational institution involved has a racially 
nondiscriminatory policy as to students.

330 F. Supp. 1150, 1179 (D.D.C.), aff’d mem. sub nom. 
Coit v. Green, 404 U.S. 997 (1971). Although the Inter­
nal Revenue Service had on July 10, 1970 announced that 
it would no longer interpret the Code to allow exemption 
for such schools, the three-judge court issued its formal 
declaratory judgment because “plaintiffs are entitled to a 
declaration of relief on an enduring, permanent basis, not 
on a basis that could be withdrawn with a shift in the 
tides of administration, or changing perceptions of sound 
discretion.” Green v. Connally, supra, 330 F. Supp. at 
1170-71. The ruling was grounded upon “a federal policy 
derived from Congressional enactment as well as the 
Constitution itself” and interpreted the Code so as to 
avoid “serious constitutional questions” which would be 
raised by a contrary construction. Id. at 1161, 1164.

Following the court’s 1971 decision, the Internal Reve­
nue Service adopted and implemented a series of Revenue 
Rulings and Revenue Procedures consonant with the de­



5

claratory judgment.1 In 1976, however, petitioners re­
opened the case and sought additional injunctive relief to 
carry out the original decree and judgment. The district 
court granted such relief in 1980. The litigation con­
tinued thereafter on issues raised by the post-1980- 
judgment-intervenor Clarksdale Baptist Church, which 
have not yet been resolved by the district court.

On January 8, 1982, the Treasury Department an­
nounced that it would no longer deny tax-exempt status 
to racially discriminatory private schools and that it would 
revoke the pertinent Revenue Rulings and Procedures 
adopted after the three-judge court’s 1971 decision. See 
Memorandum for the United States in Nos. 81-1 and 81-3 
(Goldsboro Christian Schools, Inc. v. United States and 
Bob Jones University v. United States), filed January 8, 
1982. The public announcement by the respondents made 
no reference to the outstanding court orders in this 
matter nor to any exception to the new policy for private 
schools in Mississippi.

On January 13, 1982, petitioners filed a motion for 
further injunctive relief with the district court, seeking 
injunctions (a) to require respondents Secretary of the 
Treasury and Commissioner of Internal Revenue to con­
tinue to enforce the pertinent Revenue Rulings and Reve­
nue Procedures so as to carry out the 1971 declaratory 
judgment construing the Internal Revenue Code to bar 
tax exemptions for discriminatory private schools; and 
(b) to require said respondents to adhere to the prior 
injunctive decrees of the district court. In response to 
that motion, on January 25, 1982 the government sub­
mitted an affidavit to the district court from the Assistant 
Commissioner (Employee Plans and Exempt Organiza­
tions) of the Internal Revenue Service which represented 
that the Service was continuing to comply with the prior

1 Rev. Rul. 71-447, 1971-2 Cum. Bull. 230; Rev. Proc. 72-54, 
1972-2 Cum. Bull. 834; Rev. Rul. 75-231, 1975-1 Cum. Bull. 158; 
Rev. Proe. 75-50, 1975-2 Cum. Bull. 587.



6

injunctive decrees in this matter.2 Thereafter, on Febru­
ary 4, 1982 the district court denied petitioners’ request 
for additional injunctive relief and on February 5 peti­
tioners appealed to the U.S. Court of Appeals for the 
District of Columbia Circuit.3

REASONS FOR GRANTING THE WRIT
As reflected in the Statement of the Case, supra, the 

United States Treasury Department publicly announced 
on January 8, 1982 that it would no longer deny tax 
exemptions to racially discriminatory private schools. It 
did not seek modification of the outstanding decrees in 
the instant matter which require such denials, however. 
Instead, as reflected in the affidavit submitted to the dis­
trict court on January 25, 1982, the government is volun­
tarily adhering to the decrees at the present time. It has 
chosen to litigate the validity of the declaratory judgment 
in Green v. Connally, supra, in two different cases pres­
ently pending before this Court: Goldsboro Christian
Schools, Inc. v. United States (No. 81-1) and Bob Jones 
University v. United States (No. 81-3).

On February 25, 1982, the United States submitted a 
Motion for Leave to File Brief Out of Time in Nos. 81-1 
and 81-3, and on the same date filed its proposed Brief in 
typescript. That Brief, which “sets forth the position of

2 The affidavit is reprinted at pp. 13a-14a of the Supplemental 
Memorandum for the United States in Nos. 81-1 and 81-3, filed 
February 3, 1982.

8 On February 10, 1982 petitioners filed a Motion for Injunction 
Pending Appeal with the U.S. Court of Appeals for the District 
of Columbia Circuit. That motion has not yet been acted upon, 
and in light of a pendente lite Order issued February 18, 1982 in 
Wright v. Regan, D.C. Cir. No. 80-1124 (see copy attached to Motion 
of the United States for Leave to File Brief Out of Time in Nos. 
81-1 and 81-3, filed February 25, 1982), on February 23 petitioners 
advised the Court of Appeals in a Reply that “ [s]o long as the 
February 18 Order in Wright remains in effect, there is no im­
mediate prospect of irreparable injury to the rights of the plaintiffs- 
appellants in this matter . . . .”



the United States,” n.l, attacks the Green declaratory 
judgment and reasoning and seeks to have this Court 
overrule its summary affirmance in Coit v. Green, 404 
U.S. 997 (1971). It is thus evident that there is an ad­
versary controversy affecting the legal relations of the 
parties herein: the petitioners (plaintiffs) in Green and 
the respondents Secretary of the Treasury and Commis­
sioner of Internal Revenue. The government has sought 
to avoid judicial resolution of the controversy in this law­
suit by a voluntary cessation or suspension of its new 
policy with respect to Mississippi schools. See, e.g., Havens 
Realty Corp. v. Coleman, 50 U.S.L.W, 4232, 4234 n.10 
(U.S. Feb. 24, 1982); United States v. Concentrated 
Phosphate Export Ass’n, 393 U.S. 199, 203 (1968); 
United States v. W. T. Grant Co., 345 U.S 629, 633 
(1953).

In order to protect the prior judgments in their favor, 
petitioners sought further injunctive relief from the dis­
trict court and, when that relief was denied, noticed an 
appeal to the U.S. Court of Appeals for the D.C. Circuit, 
which is presently pending. Since that appeal is properly 
“in” the Court of Appeals, 28 U.S.C. § 1292(a) (1), this 
Court may issue a writ of certiorari to bring the case 
before it. United States v. Nixon, 418 U.S 683, 692 
(1974).

By doing so, and consolidating this matter with Nos. 
81-1 and 81-3, the Court will be in a position to decide the 
important question presented herein-—which it also has 
before it in the Boh Jones and Goldsboro matters—in a 
full adversary setting,4 without the necessity of the 
Court’s appointing an amicus curiae in Nos. 81-1 and 
81-3, see Motion for Leave to File Motion for Divided

4 Once the case is brought here on a writ of certiorari, this Court 
may pass upon earlier rulings by the courts below, see Hughes Tool 
Co. v. Trans World Airlines, Inc., 409 U.S. 363, 364 n.l (1973); 
Mercer v. Theriot, 377 U.S. 152, 153-54 (1964) and cases cited; the 
Court may, of course, reconsider its own precedents, see, e.g., West 
Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 630 (1943).



8

Argument Out of Time and Motion for Divided Argument, 
filed by the United States in Nos. 81-1 and 81-3 on Feb­
ruary 25, 1982.

Petitioners are prepared to respond to the arguments 
advanced by the United States in its February 25, 1982 
Brief in Nos. 81-1 and 81-3 without delay. The circum­
stances surrounding the important legal question in­
volved and the history of Nos. 81-1 and 81-3 before this 
Court during the current Term strongly suggest the “im­
perative public importance” 6 of issuing a writ of certi­
orari to review the instant case together with Nos. 81-1 
and 81-3 with full and thorough adversary presentation 
before the Court.

WHEREFORE, petitioners respectfully pray that a 
writ of certiorari be granted.

Respectfully submitted,

W illiam  L. Robinson 
N orman J. Chachk in  
F rank  R. P arker 

Lawyers’ Committee for 
Civil Rights U nder Law 

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

Robert H. Kapp 
J oseph M. Hassett 
Sara-An n  Determan 
David S. Tatel 
Walter A. Sm ith , J r .

H ogan and Hartson 
815 Connecticut Avenue', N.W. 
Washington, D.C. 20006 
(202) 331-4500 

Attorneys for Petitioners 5

5 Supreme Court Rule 18.



l a

APPENDIX

THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 1355-69

W illiam H. Green, et al.,
v Plaintiffs,

Donald T. Regan, et al.,
Defendants.

ORDER
AND NOW, this 4th day of February, 1982, upon con­

sideration of the plaintiffs’ Motion to Vacate Stay of 
Proceedings, to Shorten Time for Response Hereto, and 
for Further Injunctive Relief to Enforce Declaratory 
Judgment and Preserve the Status Quo, of the defendants’ 
and intervenor’s responses thereto, and after hearing oral 
argument of all counsel;

AND it appearing to the Court that this case involves 
only private schools in the State of Mississippi, and the 
Court having already entered injunctive decrees applica­
ble to Mississippi private schools, it is hereby

ORDERED, ADJUDGED AND DECREED that the 
plaintiffs’ request for further injunctive relief is 
DENIED;

It is further ORDERED that the stay of proceedings 
herein entered on January 6, 1982 shall remain in effect 
pending disposition by the Supreme Court of the United 
States in the Bob Jones University v. United States (No. 
81-3) and Goldsboro Christian Schools, Inc. v. United 
States (No. 81-1) cases.

/ s /  George L. Hart, Jr.
Honorable George L. Hart, J r.
United States District Judge

[Filed Feb. 4, 1982]