
          Local Color Defaulting On Justice
          By Suitts, SteveSteve 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 

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 

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.
        
