Local Color Defaulting On Justice

By Steve Suitts

Vol. 4, No. 6, 1982, pp. 1-3

Long lines at the Supreme Court building in Washington are commonplace as tourists and school kids come daily to walk the halls and rummage the displays along its vacuous ground floor. Yet, many who lined up on the Court's concrete plaza shortly after dawn on Monday, October 12 were congressional aides, lawyers and civil rights activists. They had come to hear arguments that would decide whether federal law now prohibits Bob Jones University of Greenville, South Carolina. and other segregation academies in the South, from enjoying a tax-exempt status.

The Court's day began in usual fashion as the crier slammed his gavel and announced "O Ye, O Ye, the Supreme Court of the United States is now in session and may God save this honorable Court." One of the lawyers who had stood in line cracked the joke, adapted to every Court: "It will take divine intervention to save the Burger Court."

Here is a case where the issue of law is routine, even simple: can federal regulations that prohibit tax-exempt status for discriminatory schools and organizations be justified under provisions of a federal act. With such a narrow, almost technical issue at its heart, the Bob Jones case does not invoke the sweeping questions which another Court once faced in deciding if civil rights statutes and voting rights laws were permitted by the Constitution. Rather. this is a question of interpreting a federal statute which Congress has passed and can amend before or after the Court rules. As a legal matter then, it is not the sort of case for which lawyers and congressional aides usually stand in line.

The case did have an enticing mixed parentage. It was born out of that embarrassing moment of political insensitivity when Treasure Department officials, with the approval of the Reagan White House, decided to stop enforcing the federal regulation adopted originally under the Nixon Administration and observed under Ford and Carter. Coming on the heels of the President's opposition to a strong version of the Voting Rights Act, the controversy contributed to a shifting public opinion which had already begun to cast Reagan as callous


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towards the poor and racial minorities.

This was also one of the first controversies for which the Reagan Administration had to build a rationale after the fact. Once it was clear that the White House would have to own up to the decision, the Justice Department issued a statement laying out the Administration's view that Congress had not intended to permit such federal regulations when changes in the Internal Revenue Code were made. The President believed in the separation of powers and, if Congress wanted such a regulation, Congress would have to authorize it.

When the White House realized that its rationale failed to assert any presidential commitment to civil rights, it proposed some face-saving legislation. At the same time, when civil rights lawyers resurrected old, but pending, cases on the issue of tax exempt status for segregated schools, Reagan's Justice Department stuck with its immobilized position, insisting on legislation from Congress.

Reagan's position required the Court to adopt unusual procedures to bring the Bob Jones arguments before it. After the Justice Department switched sides, the Court found itself having to assign a lawyer to argue Justice's rightful case. Their choice was William P. Coleman, a successful lawyer, former Republican Secretary of the Department of Transportation, and the first black Supreme Court clerk.

When asked why they stood in line to hear Coleman's argument, a few leading civil rights lawyers and congressional aides seemed puzzled by the question. "It's a big case," was one response, hardly an answer to stand up under cross-examination. Another came closer, "I want to see how the Burger Court thinks it can worm out of this one."

The importance of the case may have befuddled people because it cannot be gleaned from the questions of law which Coleman argued on one side and William Bradford Reynolds, the Assistant Attorney General for Civil Rights, argued on the other. Its significance lies in its unspoken statement about the changing role of the federal government in promoting civil rights and in the practical role that segregated academies play in obstructing integrated public education, especially in the rural South.

Although it was never mentioned during the Court argument, this controversy reveals that, within the federal government, the initiative for enforcement of civil rights may have fallen once again solely to--perhaps for the first time since the late 1950's--the judiciary as the other branches default. The case would never be before the Supreme Court if, simply, the President had decided to enforce the federal regulation. Congress also could have prevented the case by, simply, restating its intent. The passage of a resolution or additional legislation would have served notice that federal law authorizes the denial of tax-exempt status to segregation academies. Instead of settling the controversy, both Congress and the President stayed their hands.

Thus, the case becomes the first true test of this Court's will to follow the law in the face of hostility and indecision from the President and Congress and to repeat the role on issues of civil rights which the Warren Court began three decades ago.

The case is also important because the Court's opinion will touch the fate of public education in many Southern rural areas. In the eleven states of the South, the enrollment of students in private schools with discriminatory practices has reached substantial proportions. From 1965, when less than 100,000 children went to segregation academies, the enrollment grew to almost 700,000 by 1975. Notably, such growth of enrollment appears to have leveled in the last five to eight years, corresponding with the time of the adoption and enforcement of the Treasury's policy against tax-exemption.

In the heart of the South's Black Belt, public education survives precariously because private segregation academies thrive. Most of these academies depended originally on donations of buildings and land from a few individuals, and most have continued to rely heavily upon rich benefactors. It is one of the supreme ironies of the Black Belt that many of the white members of the boards of education for public schools continue to send their own children to segregation academies.

If the Supreme Court decides in favor of Bob Jones University, and Congress and the President continue to disavow responsibility, public integrated education in the rural Deep South could be lost for several more decades.

An opinion by the Court against Bob Jones University, however, may not serve much better. As a test of the mettle of a President who says he will enforce constitutional rights at the point of a bayonet if necessary, the decision will place President Reagan in a position where his own personal opinions come in open conflict with a Court opinion which he had strongly opposed. In keeping with the change in the federal role, the situation could come to resemble the time when President Eisenhower's conspicuous silence on Supreme Court


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decisions of school integration were read by Southern states officials as an implicit endorsement of massive resistance.

Other practical problems could arise. If the Court overrules the Justice Department, it is the President's own Treasury agents who will decide if the regulation is enforced vigorously. So, even after a decision the actions of the President will speak as loud as the words of the Court opinion, in deciding to fate of public integrated education.

When the October 12 argument concluded, most civil rights lawyers who were there agreed on the outcome of the case: in one way or another, the Court will sustain the regulation. Some even speculated that the opinion might have the support of seven or eight Justices. They may be right. But, if the protection of civil rights and integrated public education now depends largely on the initiatives of the Burger Court, in the fact of a hostile president and an immobile Congress, O Ye, O Ye, God save this country.