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Dissenting Opinions
Brennan
Stevens


JUSTICE BRENNAN, dissenting.

Once again, the Court

uses "standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits."

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 490 (1982) (BRENNAN, J., dissenting) (quoting Barlow v. Collins, 397 U.S. 159, 178 (1970) (BRENNAN, J., concurring in result and dissenting)). And once again, the Court does so by "wax[ing] eloquent" on considerations that provide little justification for the decision at hand. See 454 U.S. at 491. This time, however, the Court focuses on "the idea of separation of powers," ante at 750, 752, 759, 761, as if the mere incantation of that phrase provides an obvious solution to the difficult questions presented by these cases. [p767]

One could hardly dispute the proposition that Art. III of the Constitution, by limiting the judicial power to "Cases" or "Controversies," embodies the notion that each branch of our National Government must confine its actions to those that are consistent with our scheme of separated powers. But simply stating that unremarkable truism provides little, if any, illumination of the standing inquiry that must be undertaken by a federal court faced with a particular action filed by particular plaintiffs.

The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government.

Flast v. Cohen, 392 U.S. 83, 100 (1968).

The Court's attempt to obscure the standing question must be seen, therefore, as no more than a cover for its failure to recognize the nature of the specific claims raised by the respondents in these cases. By relying on generalities concerning our tripartite system of government, the Court is able to conclude that the respondents lack standing to maintain this action without acknowledging the precise nature of the injuries they have alleged. In so doing, the Court displays a startling insensitivity to the historical role played by the federal courts in eradicating race discrimination from our Nation's schools — a role that has played a prominent part in this Court's decisions from Brown v. Board of Education, 347 U.S. 483"]347 U.S. 483 (1954), through 347 U.S. 483 (1954), through Bob Jones University v. United States, 461 U.S. 574 (1983). Because I cannot join in such misguided decisionmaking, I dissent.

Contents

IEdit

The respondents, suing individually and on behalf of their minor children, are parents of black children attending public schools in various school districts across the Nation. Each of these school districts, the respondents allege, [1] was once segregated [p768] and is now in the process of desegregating pursuant to court order, federal regulations or guidelines, state law, or voluntary agreement. Moreover, each contains one or more private schools that discriminate against black schoolchildren and that operate with the assistance of tax exemptions unlawfully granted to them by the Internal Revenue Service (IRS). See Complaint ¶¶ 24-48, App. 26-38.

To eliminate this federal financial assistance for discriminating schools, the respondents seek a declaratory judgment that current IRS practices are inadequate both in identifying racially discriminatory schools and in denying requested tax exemptions or revoking existing exemptions for any schools so identified. In particular, they allege that existing IRS guidelines permit schools to receive tax exemptions simply by adopting and certifying — but not implementing — a policy of nondiscrimination. Pursuant to these ineffective guidelines, [2] many private schools that discriminate on the basis of [p769] race continue to benefit illegally from their tax-exempt status and the resulting charitable deductions granted to taxpayers who contribute to such schools. The respondents therefore seek a permanent injunction requiring the IRS to deny tax exemptions to any private schools

which have insubstantial or nonexistent minority enrollments, which are located in or serve desegregating school districts, and which either —

(a) were established or expanded at or about the time the public school districts in which they are located or which they serve were desegregating;

(b) have been determined in adversary judicial or administrative proceedings to be racially segregated; or

(c) cannot demonstrate that they do not provide racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems.

Complaint ¶ 4, App.19. This requested relief is substantially similar to the enforcement guidelines promulgated by the IRS itself in 1978 and 1979, before congressional action temporarily stayed, and the agency withdrew, the amended procedures. See 44 Fed.Reg. 9451 (1979); 43 Fed.Reg. 37296 (1978). Cf. ante at 747, and nn. 15-16. [p770]

IIEdit

Persons seeking judicial relief from an Art. III court must have standing to maintain their cause of action. At a minimum, the standing requirement is not met unless the plaintiff has

such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends. . . .

Baker v. Carr, 369 U.S. 186, 204 (1962). Under the Court's cases, this "personal stake" requirement is satisfied if the person seeking redress has suffered, or is threatened with, some "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501 (1975), and if there is some causal connection between the asserted injury and the conduct being challenged, Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41 (1976). See Heckler v. Mathews, 465 U.S. 728, 738 (1984); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 (1982); Valley Forge, 454 U.S. at 472.

II AEdit

In these cases, the respondents have alleged at least one type of injury that satisfies the constitutional requirement of "distinct and palpable injury." [3] In particular, they claim [p771] that the IRS's grant of tax-exempt status to racially discriminatory private schools directly injures their children's opportunity and ability to receive a desegregated education. As the complaint specifically alleges, the IRS action being challenged

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 interferes with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have been operating racially dual school systems.

Complaint ¶ 50(b), App. 39.

The Court acknowledges that this alleged injury is sufficient to satisfy constitutional standards. See ante at 756. It does so only grudgingly, however, without emphasizing the significance of the harm alleged. Nonetheless, we have consistently recognized throughout the last 30 years that the deprivation of a child's right to receive an education in a desegregated school is a harm of special significance; surely, it satisfies any constitutional requirement of injury in fact. Just last Term, in Bob Jones University v. United States, for example, we acknowledged that

[a]n unbroken line of cases following Brown v. Board of Education 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.

461 U.S. at 593 (1983) (emphasis added). See Gilmore v. City of Montgomery, 417 U.S. 556, 568 (1974) ("[T]he constitutional rights of children not to be discriminated against . . . can neither be nullified openly and [p772] directly . . . nor nullified indirectly . . . through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously'") (quoting Cooper v. Aaron, 358 U.S. 1, 17 (1958)); Norwood v. Harrison, 413 U.S. 455, 468-469 (1973).

The right of a student not to be segregated on racial grounds in schools . . . is indeed so fundamental and pervasive that it is embraced in the concept of due process of law.

Cooper v. Aaron, supra, at 19; Brown v. Board of Education, 347 U.S. 483 (1954).

In the analogous context of housing discrimination, the Court has similarly recognized that the denial of an opportunity to live in an integrated community is injury sufficient to satisfy the constitutional requirements of standing. In particular, we have recognized that injury is properly alleged when plaintiffs claim a deprivation "of the social and professional benefits of living in an integrated society." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 111-112 (1979). See also Havens Realty Corp. v. Coleman, supra, at 376, and n. 17; Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). Noting "the importance of the ‘benefits [obtained] from interracial associations'" as well as the oft-stated principle "that noneconomic injuries may suffice to provide standing," we have consistently concluded that such an injury is "sufficient to satisfy the constitutional standing requirement of actual or threatened harm." Gladstone, Realtors, supra, at 112 (quoting Trafficante, supra, at 210, and citing Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972)).

There is, of course, no rational basis on which to treat children who seek to be educated in desegregated school districts any differently for purposes of standing than residents who seek to live in integrated housing communities. Indeed, if anything, discriminatory practices by private schools, which "exer[t] a pervasive influence on the entire educational process," Norwood, supra, at 469 (citing Brown v. Board of Education, supra, and quoted in Bob Jones University, supra, at [p773] 595), have been more readily recognized to constitute injury redressable in the federal courts. It is therefore beyond peradventure that the denial of the benefits of an integrated education alleged by the respondents in these cases constitutes "distinct and palpable injury."

II BEdit

Fully explicating the injury alleged helps to explain why it is fairly traceable to the governmental conduct challenged by the respondents. As the respondents specifically allege in their complaint:

Defendants have fostered and encouraged the development, operation and expansion of many of these racially segregated private schools by recognizing them as "charitable" organizations described in Section 501(c)(3) of the Internal Revenue Code, and exempt from federal income taxation under Section 501(a) of the Code. Once the schools are classified as tax-exempt, . . . contributions made to them are deductible from gross income on individual and corporate income tax returns. . . . Moreover, [the] organizations . . . are also exempt from federal social security taxes . . . and from federal unemployment taxes. . . . The resulting exemptions and deductions provide tangible financial aid and other benefits which support the operation of racially segregated private schools. In particular, the resulting deductions facilitate the raising of funds to organize new schools and expand existing schools in order to accommodate white students avoiding attendance in desegregating public school districts. Additionally, the existence of a federal tax exemption amounts to a federal stamp of approval which facilitates fund raising on behalf of racially segregated private schools. Finally, by supporting the development, operation and expansion of institutions providing racially segregated educational opportunities [p774] for white children avoiding attendance in desegregating public schools, defendants are thereby interfering with the efforts of courts, HEW and local school authorities to desegregate public school districts which have been operating racially dual school systems.

Complaint ¶ 21, App. 24. [4]

Viewed in light of the injuries they claim, the respondents have alleged a direct causal relationship between the Government action they challenge and the injury they suffer: their inability to receive an education in a racially integrated school is directly and adversely affected by the tax-exempt status granted by the IRS to racially discriminatory schools in their respective school districts. Common sense alone would recognize that the elimination of tax-exempt status for racially discriminatory private schools would serve to lessen the impact that those institutions have in defeating efforts to desegregate the public schools.

The Court admits that

[t]he diminished ability of respondents' children to receive a desegregated education would be [p775] fairly traceable to unlawful IRS grants of tax exemptions . . . if there were enough racially discriminatory private schools receiving tax exemptions in respondents' communities for withdrawal of those exemptions to make an appreciable difference in public school integration,

but concludes that "[r]espondents have made no such allegation." Ante at 758. With all due respect, the Court has either misread the complaint or is improperly requiring the respondents to prove their case on the merits in order to defeat a motion to dismiss. [5] For example, the respondents specifically refer by name to at least 32 private schools that discriminate on the basis of race, and yet continue to benefit illegally from tax-exempt status. Eighteen of those schools — including at least 14 elementary schools, 2 junior high schools, and 1 high school — are located in the city of Memphis, Tenn., which has been the subject of several court orders to desegregate. See Complaint ¶¶ 24-27, 45, App. 26-27, 35-36. Similarly, the respondents cite two private schools in Orangeburg, S.C., that continue to benefit from federal tax exemptions even though they practice race discrimination in school districts that are desegregating pursuant to judicial and administrative orders. See Complaint ¶¶ 29, 46, App. 28, 36. At least with respect to these school districts, as well as the others specifically mentioned in the complaint, there can be little doubt that the respondents have identified communities containing

enough racially discriminatory private schools receiving tax exemptions . . . to make an appreciable difference in public school integration,

ante at 758. [6] [p776]

Moreover, the Court has previously recognized the existence, and constitutional significance, of such direct relationships between unlawfully segregated school districts and government support for racially discriminatory private schools in those districts. In Norwood v. Harrison, 413 U.S. 455 (1973), for example, we considered a Mississippi program that provided textbooks to students attending both public and private schools, without regard to whether any participating school had racially discriminatory policies. In declaring that program constitutionally invalid, we noted that

"a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."

Id. at 465. We then spoke directly to the causal relationship between the financial aid provided by the state textbook program and the constitutional rights asserted by the students and their parents:

The District Court laid great stress on the absence of a showing by appellants that

any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools. . . .

We do not agree with the District Court in its analysis of the legal consequences of this uncertainty, for 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 wellbeing of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination.

Id. at 465-466 (citations omitted) (emphasis added). [p777] Thus, Norwood explicitly stands for the proposition that governmental aid to racially discriminatory schools is a direct impediment to school desegregation.

The Court purports to distinguish Norwood from the present litigation because "‘[t]he plaintiffs in Norwood were parties to a school desegregation order,'" and therefore

had acquired a right to have the State "steer clear" of any perpetuation of the racially dual school system that it had once sponsored,

ante at 763 (quoting Gilmore v. City of Montgomery, 417 U.S. at 571, n. 10, and Norwood, supra, at 467), whereas the "[r]espondents in this lawsuit . . . have no injunctive rights against the IRS that are allegedly being harmed," ante at 763. There is nothing to suggest, however, that the relevant injunction in Norwood was anything more than an order to desegregate the schools in Tunica County, Miss. [7] Given that many of the school districts identified in the respondents' complaint have also been the subject of court-ordered integration, the standing inquiry in these cases should not differ. And, although the respondents do not specifically allege that they are named parties to [p778] any outstanding desegregation orders, that is undoubtedly due to the passage of time since the orders were issued, and not to any difference in the harm they suffer.

Even accepting the relevance of the Court's distinction, moreover, that distinction goes to the injury suffered by the respective plaintiffs, and not to the causal connection between the harm alleged and the governmental action challenged. Cf. ante at 756 (conceding that the respondents have alleged constitutionally sufficient harm in these cases). The causal relationship existing in Norwood between the alleged harm (i.e., interference with the plaintiffs' injunctive rights to a desegregated school system) and the challenged governmental action (i.e., free textbooks provided to racially discriminatory schools) is indistinguishable from the causal relationship existing in the present cases, unless the Court intends to distinguish the lending of textbooks from the granting of tax-exempt status. The Court's express statement on causation in Norwood therefore bears repeating:

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 wellbeing of that school.

413 U.S. at 465-466. See Note, The Judicial Role in Attacking Racial Discrimination in Tax-Exempt Private Schools, 93 Harv.L.Rev. 378, 385-386 (1979). [8] [p779]

Similarly, although entitled to less weight than a decision after full briefing and oral argument on the merits, see Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976), our summary affirmance in Coit v. Green, 404 U.S. 997 (1971), summarily aff'g Green v. Connally, 330 F.Supp. 1150 (DC), is directly relevant to the standing of the respondents in this litigation. The plaintiffs in Coit v. Green were black parents of minor children attending public schools in desegregating school districts. Like the respondents in these cases, the plaintiffs charged that the IRS had failed to confine tax-exempt status to private schools that were not racially discriminatory. And like the present respondents, they sought new IRS procedures as their exclusive remedy.

The three-judge District Court expressly concluded that the plaintiffs had standing to maintain their action:

This case is properly maintained as a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure, by Negro school children in Mississippi and the parents of those children on behalf of themselves and all persons similarly situated. They have standing to attack the constitutionality of statutory provisions which they claim provid[e] an unconstitutional system of benefits and [p780] matching grants that fosters and supports a system of segregated private schools as an alternative available to white students seeking to avoid desegregated public schools. We follow the precedent on this point of the three-judge District Court for the Southern District of Mississippi in Coffey v. State Educational Finance Commission, 296 F.Supp. 1389 (1969).

Green v. Kennedy, 309 F.Supp. 1127, 1132 (DC), appeal dism'd sub nom. Cannon v. Green, 398 U.S. 956 (1970).

When the case was properly appealed to this Court, the standing issue was expressly raised in the jurisdictional statement filed by intervenor Coit on behalf of a class of parents and children who supported or attended all-white private schools. Juris. Statement, O.T. 1971, No. 71-425, p. 11. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. at 63, and n. 11 (BRENNAN, J., concurring in judgment). Nonetheless, the Court summarily affirmed, Coit v. Green, supra, thereby indicating our agreement with the District Court's conclusion. [9] See also Griffin v. County [p781] School Board of Prince Edward County, 377 U.S. 218, 224 (1964).

Given these precedents, the Court is forced to place primary reliance on our decision in Simon v. Eastern Kentucky Welfare Rights Org., supra. In that case, the Court denied standing to plaintiffs who challenged an IRS Revenue Ruling that granted charitable status to hospitals even though they failed to operate to the extent of their financial ability when refusing medical services for indigent patients. The Court found that the injury alleged was not one "that fairly can be traced to the challenged action of the defendant." Id. at 41. In particular, it was "purely speculative" whether the denial of access to hospital services alleged by the plaintiffs fairly could be traced to the Government's grant of tax-exempt status to the relevant hospitals, primarily because the hospitals were likely making their service decisions without regard to the tax implications. Id. at 42-43.

Even accepting the correctness of the causation analysis included in that decision, however, it is plainly distinguishable from the cases at hand. The respondents in these cases do not challenge the denial of any service by a tax-exempt [p782] institution; admittedly, they do not seek access to racially discriminatory private schools. Rather, the injury they allege, and the injury that clearly satisfies constitutional requirements, is the deprivation of their children's opportunity and ability to receive an education in a racially integrated school district. See supra at 770-773. This injury, as the Court admits, ante at 757-758, and as we have previously held in Norwood v. Harrison, 413 U.S. at 465-466, is of a kind that is directly traceable to the governmental action being challenged. The relationship between the harm alleged and the governmental action cannot simply be deemed "purely speculative," as was the causal connection at issue in Simon v. Eastern Kentucky Welfare Rights Org., supra, at 42. Indeed, as I have previously explained, supra at 773-778, the Court's conclusion to the contrary is based on a unjustifiably narrow reading of the respondents' complaint and an indefensibly limited interpretation of our holding in Norwood. By interposing its own version of pleading formalities between the respondents and the federal courts, the Court not only has denied access to litigants who properly seek vindication of their constitutional rights, but also has ignored the important historical role that the courts have played in the Nation's efforts to eliminate racial discrimination from our schools.

IIIEdit

More than one commentator has noted that the causation component of the Court's standing inquiry is no more than a poor disguise for the Court's view of the merits of the underlying claims. [10] The Court today does nothing to avoid that criticism. What is most disturbing about today's decision, therefore, is not the standing analysis applied, but the indifference [p783] evidenced by the Court to the detrimental effects that racially segregated schools, supported by tax-exempt status from the Federal Government, have on the respondents' attempt to obtain an education in a racially integrated school system. I cannot join such indifference, and would give the respondents a chance to prove their case on the merits.

NotesEdit

^ . Because the District Court granted a motion to dismiss, see Wright v. Miller, 480 F.Supp. 790, 793 (DC 1979), we must "‘accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party.'" Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109 (1979) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). See 441 U.S. at 112. Cf. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

^ . As I have recognized in n. 1, supra, we must accept as true the factual allegations made by the respondents. It nonetheless should be noted that significant evidence exists to support the respondents' claim that the IRS guidelines are ineffective. Indeed, the Commissioner of Internal Revenue admitted as much in testimony before the Congress:

This litigation prompted the Service once again to review its procedures in this area. It focused our attention on the adequacy of existing policies and procedures as we moved to formulate a litigation position. We concluded that the Service's procedures were ineffective in identifying schools which, in actual operation, discriminate against minority students, even though the schools may profess an open enrollment policy and comply with the yearly publication requirements 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. Just last year, the U.S. Commission on Civil Rights criticized the Service's enforcement in this area as inadequate, emphasizing the continuing tax exemption of such adjudicated schools.

Tax-Exempt Status of Private Schools: 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 of Internal Revenue) (emphasis added). See also id. at 236-251 (letter and memorandum from U.S. Commission on Civil Rights criticizing IRS enforcement policies); id. at 1181-1182, 1187-1191 (statement and letter from Civil Rights Division of the Department of Justice criticizing IRS guidelines).

^ . Because I conclude that the second injury alleged by the respondents is sufficient to satisfy constitutional requirements, I do not need to reach what the Court labels the "stigmatic injury." See ante at 754-756, and n. 22. I note, however, that the Court has mischaracterized this claim of injury by misreading the complaint filed by the respondents. In particular, the respondents have not simply alleged that, as blacks, they have suffered the denigration injury "suffered by all members of a racial group when the Government discriminates on the basis of race." Ante at 754. Rather, the complaint, fairly read, limits the claim of stigmatic injury from illegal governmental action to black children attending public schools in districts that are currently desegregating, yet contain discriminatory private schools benefiting from illegal tax exemptions. Cf. Havens Realty Corp. v. Coleman, 455 U.S. at 377 (injury from racial steering practices confined to "relatively compact neighborhood[s]"). Thus, the Court's "parade of horribles" concerning black plaintiffs from Hawaii challenging tax exemptions granted to schools in Maine, see ante, at 756, is completely irrelevant for purposes of Art. III standing in this action. Indeed, even if relevant, that criticism would go to the scope of the class certified or the relief granted in the lawsuit, issues that were not reached by the District Court or the Court of Appeals and are not now before this Court.

^ . The substance of these allegations is also summarized in ¶ 2 of the complaint:

Contrary to law and their public responsibility, defendants have fostered and encouraged the development, operation and expansion of these racially segregated private schools by granting them, or the organizations that operate them, exemptions from federal income taxation. . . . Defendants have thereby ensured that these private schools will be exempt from federal income taxation, and that contributions to them will be deductible by corporate and individual donors for federal tax purposes. These federal tax benefits are important to the financial wellbeing of private segregated schools, and significantly support their development, operation and expansion. Moreover, by facilitating the development, operation and expansion of racially segregated schools which provide alternative educational opportunities for white children avoiding attendance in desegregating public school systems, defendants are thereby interfering with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have operated racially dual school systems.

App. 17-18.

^ . The Court's confusion is evident from note 23 of its opinion, ante at 758. The Court claims that "none of [the schools] alleged to be directly receiving a tax exemption is alleged to be racially discriminatory." This is directly contradicted not only by the plain language of the complaint, see Complaint ¶¶ 2, 22, App. 17-18, 25, but also by the Court's earlier concession that the respondents' complaint alleges "grants of tax-exempt status to . . . racially discriminatory private schools in desegregating districts," ante at 745, n. 11.

^ . Even if the Court were correct in its conclusion that there is an insufficient factual basis alleged in the complaint, the proper disposition would be to remand in order to afford the respondents an opportunity to amend their complaint. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 377-378 (1982); Simon v. Eastern. Kentucky Welfare Rights Org., 426 U.S. 26, 55, n. 6 (1976) (BRENNAN, J., concurring in judgment). Cf. Fed.Rule Civ.Proc. 12(e).

^ . In particular, the plaintiffs in Norwood, suing on behalf of a statewide class of black students, characterized the basis for their standing as follows:

The named plaintiffs . . . are black citizens of the United States residing in Tunica County, Mississippi. They are students in attendance at the public schools of the Tunica County School District. Their right to a racially integrated and otherwise nondiscriminatory public school system, vindicated by order of [the District Court] dated January 23, 1970 [United States and Driver v. Tunica County School District, Civil Action Nos. DC 6718 and 7013], and their right to the elimination of state support for racially segregated schools, has been frustrated and/or abridged by the creation of the racially segregated Tunica County Institute of Learning and the policies and practices of defendants as set forth below.

App. 20 and Brief for United States as Amicus Curiae in Norwood v. Harrison, O.T. 1972, No. 72-77, p. 5. For the reasons explained in the text, I find these allegations legally indistinguishable from the allegations in the present litigation.

^ . Our subsequent decision in Gilmore v. City of Montgomery, 417 U.S. 556 (1974), heavily relied on our decision in Norwood. In Gilmore, we considered a challenge to a city policy that permitted racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. In affirming an injunction against exclusive access to such facilities, we noted:

Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible.

[T]he constitutional rights of children not to be discriminated against . . . can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation, whether attempted "ingeniously or ingenuously."

This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools and with all citizens, is constitutionally prohibited if it has "a significant tendency to facilitate, reinforce, and support private discrimination." The constitutional obligation of the State

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.

417 U.S. at 568-569 (citations omitted).

The Court notes that the case in Gilmore was remanded to the District Court for development of a more particularized record to ensure that the nonexclusive use of the city's parks "‘would result in cognizable injury to these plaintiffs.'" Ante at 763, n. 28 (quoting Gilmore, supra, at 570-571, n. 10). At most, however, this simply suggests that a remand for more particularized pleadings is the proper disposition in the present litigation. Cf. n. 6, supra. The Court is therefore no more faithful to the procedures followed in Gilmore than it is to the substance of that decision.

^ . The Court's discussion of our summary affirmance in Coit v. Green simply stretches the imagination beyond its breaking point. The Court concludes that

[t]he limited setting, the history of school desegregation in Mississippi at the time of the Coit litigation, the nature of the IRS conduct challenged at the outset of the litigation, and the District Court's particular findings . . . amply distinguish the Coit case from respondents' lawsuit.

Ante at 765. With all due respect, none of these criteria should be relevant to the determination of standing in these cases.

First, although the Coit litigation was limited to the State of Mississippi, that relates solely to the scope of a properly certified class, and not to the standing of class members to maintain their action. Cf. n. 3, supra. Second, although the District Court made extensive findings concerning the importance of tax exemptions to the discriminatory schools involved in the Coit litigation, that only helps to prove the truth of the allegations made by the respondents in these cases. It also demonstrates why the respondents should be given either an opportunity to prove their case on the merits or an opportunity to amend their pleadings with more particularized allegations. Cf. nn. 6, 8, supra. Because the respondents in this litigation have never had their day in court, the Court's use of the specific findings made in the Coit litigation to deny the respondents standing in this litigation makes a mockery of the standing inquiry. Third, although it is correct that, before the Coit litigation, the IRS initially followed a policy of granting tax exemptions to racially discriminatory schools, that should have no bearing on the respondents' standing in these cases; indeed, the respondents have alleged that the current IRS enforcement policy is so ineffective as to be the functional equivalent of the Government's policy prior to the Coit litigation. See supra at 768, and n. 2. Finally, if the "history of school desegregation in Mississippi at the time of the Coit litigation" is at all relevant to the standing inquiry, it weighs in favor of allowing the respondents to maintain their present lawsuit. From the perspective of black children attending desegregating public schools, and according to the allegations included in their complaint, current IRS policies toward racially discriminatory private schools represent a substantial continuation of the onerous history of school desegregation in the affected school districts. With all respect, therefore, the Court has simply failed to distinguish these cases from our summary affirmance in Coit v. Green.

^ . See, e.g., L. Tribe, American Constitutional Law § 3-21 (1978); Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv.L.Rev. 1, 14-22 (1982); Nichol, Causation as a Standing Requirement: The Unprincipled Use of Judicial Restraint, 69 Ky.L.J. 185 (1980-1981); Tushnet, The New Law of Standing: A Plea for Abandonment, 62 Cornell L.Rev. 663 (1977).