WRIGHT v. REGAN, 656 F.2d 820 (D.C. Cir. 1981)

INEZ WRIGHT, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, OSCAR CLAY RENFRO, ANTHONY LEE RENFRO, LISA MARIE WRIGHT, AND EPHRON ANTONI WRIGHT, JR., ET AL., APPELLANTS, v. DONALD T. REGAN, SECRETARY OF THE TREASURY, ET AL.

No. 80-1124.United States Court of Appeals, District of Columbia Circuit.Argued February 17, 1981.
Decided June 18, 1981.

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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

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Robert H. Kapp, Washington, D.C., with whom Arthur J. Rothkopf, Sara-Ann Determan, Paul L. Joffe, Washington, D.C., Richard S. Kohn, Philadelphia, Pa., William L. Robinson, Norman J. Chachkin, New York City, William E. Caldwell, Richard Fields, Memphis, Tenn., James M. Nabrit, III, Bill Lann Lee, New York City and Armand G. Derfner, Charleston, S.C., were on the brief for appellants. Frank R. Parker, Jackson, Miss., for appellants.

Robert S. Pomerance, Atty., Dept. of Justice, Washington, D.C., with whom M. Carr Ferguson, Asst. Atty. Gen., Washington, D.C. (at the time the brief was filed), John F. Murray, Acting Asst. Atty. Gen., Charles F. C. Ruff, U.S. Atty., Michael L. Paup and Ernest J. Brown, Attys., Dept. of Justice, Washington, D.C., were on the brief, for federal appellees. William A. Friedlander, Atty., Dept. of Justice, Washington, D.C., for federal appellees.

George E. Morrow, Memphis, Tenn., for appellee Allen.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 76-1426).

Before WRIGHT, TAMM and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge TAMM.

GINSBURG, Circuit Judge:

[1] This action charges the Internal Revenue Service with failure to fulfill its obligation to confine tax exemption under section 501(c)(3) of the Internal Revenue Code to private schools that operate on a racially nondiscriminatory basis.[1] It was initiated in 1976 by parents of black children attending public schools in desegregating districts in several states. Nationwide relief is sought. The case is companion to Green v. Miller, No. 1355-69 (D.D.C.). Green was instituted in 1969 and reopened in 1976; relief requested in Green is limited to schools in Mississippi. In April 1977 the district court ordered the two actions consolidated. Green v. Miller, No. 1355-69 (D.D.C. Apr. 5, 1977), Joint Appendix (J.A.) 48-50. In November 1979 that court dismissed the Wright component of the consolidated action as nonjusticiable. Wright v. Miller, 480 F.Supp. 790
(D.D.C. 1979). Six months later, the district court issued an order and permanent injunction in Green granting in significant part the relief requested in that action. Green v. Miller, No. 1355-69 (D.D.C. May 5, 1980) (clarified and amended June 2, 1980).

[2] In this appeal plaintiffs’ standing to sue is the dominant issue. In addition to concluding that plaintiffs lacked standing, the district court also determined that deference to the Internal Revenue Service and to Congress portended against judicial review. We conclude that the district court erred in dismissing the case on the grounds asserted; we therefore remand for further proceedings.[2] To place the issues before us in

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context, we describe at the outset the course of proceedings, first in Green, then in this case. Thereafter, we discuss in turn the three reasons the district court supplied for dismissing the complaint.

[3] I. THE GREEN AND WRIGHT CASE HISTORIES
[4] In 1969, when the Green litigation commenced, the IRS accorded tax-exempt status to racially discriminatory private schools so long as the schools were not receiving state aid. See Green v. Kennedy, 309 F.Supp. 1127, 1130 (D.D.C.) (three-judge court), appeal dismissed sub nom. Cannon v. Green, 398 U.S. 956, 90 S.Ct. 2169, 26 L.Ed.2d 539 (1970); Hearings, supra note 1, at 3 (statement of Jerome Kurtz, Commissioner of Internal Revenue). The Green plaintiffs, black parents and their minor children attending public schools in Mississippi, sought to enjoin the Secretary of the Treasury and the Commissioner of Internal Revenue from according tax exemption to private schools in Mississippi “from which Negro students are excluded on the basis of color.” 309 F.Supp. at 1130. In response to the plaintiffs’ motion for a preliminary injunction, the three-judge district court empaneled to hear Green[3] restrained the defendants “from issuing further ruling letters under sections 170(c) and 501(c) of the Internal Revenue Code to private schools in Mississippi unless they have affirmatively determined on the basis of adequate investigation that the applicant school does not discriminate against Negroes in its admissions policy.”309 F.Supp. at 1131. Before setting out the considerations that warranted pendente lite injunctive relief, the court dealt summarily with the defendants’ assertion that the plaintiffs lacked standing to maintain the suit:

We take note of defendants’ contention that plaintiffs have no standing to bring this action in their capacity as taxpayers. We need not consider that issue at this juncture. 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 provides [sic] an unconstitutional system of benefits and 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.

[5] Id. at 1132.

[6] Prior to further disposition by the court, the Service changed its position. It announced that racially discriminatory private schools are not entitled to tax exemption.[4] A sharp adversary contest remained, however, between plaintiffs and intervenors, a class of parents and children who supported or attended private schools in Mississippi with an enrollment limited to members of the white race. See Green v. Connally, 330 F.Supp. 1150, 1155
(D.D.C.) (three-judge court), aff’d mem. sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971).

[7] In June 1971, the court decided Green on the merits; granting plaintiffs both declaratory relief and a permanent injunction, the court held that “the Code requires the denial and elimination of Federal tax exemptions for racially discriminatory private schools and of Federal income tax deductions for contributions to such schools.” Green v. Connally, 330 F.Supp. at 1156. The court noted that section 501(c)(3) does not expressly so mandate. It then discussed evolving case law governing charitable and educational trusts. Ultimately,

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however, the court did not rest upon common-law developments. Instead, it determined that the Internal Revenue Code exemption provisions must be read in a manner harmonious with federal civil rights legislation and the overriding national policy against racial discrimination in educational facilities. A contrary reading, the court emphasized, would raise “serious constitutional questions”:

Clearly the Federal Government could not under the Constitution give direct financial aid to schools practicing racial discrimination. But tax exemptions and deductions certainly constitute a Federal Government benefit and support. While that support is indirect, and is in the nature of a matching grant rather than an unconditional grant, it would be difficult indeed to establish that such support can be provided consistently with the Constitution.

[8] 330 F.Supp. at 1164-65.[5]

[9] The injunction ordered in Green in June 1971 barred the Service from granting tax exemption to any private school in Mississippi unless the school adopted a racially nondiscriminatory policy as to students and gave meaningful notice to the community concerning that policy. Further, the injunction required schools seeking exemption to supply the Service with information as to (1) the racial composition of students, faculty, staff, and applicants for admission; (2) recipients of scholarship and loan funds; and (3) the school’s organizers, board members, and donors of land and buildings. 330 F.Supp. at 1179-80. The nature of the class action, the court noted, accounted for a decree limited to schools in Mississippi. The court added, however, that “[t]he Service would be within its authority in including similar requirements for all schools of the nation.” Id. at 1176. More particularly, the court stated:

To obviate any possible confusion the court is not to be misunderstood as laying down a special rule for schools located in Mississippi. The underlying principle is broader, and is applicable to schools outside Mississippi with the same or similar badge of doubt. Our decree is limited to schools in Mississippi because this is an action in behalf of black children and parents in Mississippi . . . .

[10] Id. at 1174.

[11] After the Supreme Court summarily affirmed the three-judge district court decision in Green v. Connally,[6] the Service adopted guidelines, applicable nationwide, to assist it in determining whether schools seeking or holding exempt status are in fact discriminatory.[7] The IRS guidelines, as

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published in 1975, were criticized by the U.S. Commission on Civil Rights as inadequate to identify racially discriminatory schools.[8] Ultimately, the Service acknowledged that the procedures in place since 1975 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 [IRS] yearly publication requirement.”[9]

[12] On July 23, 1976, the Green plaintiffs reopened that case, asserting that the Service was not complying with the court’s continuing injunction against tax exemption for racially discriminatory private schools in Mississippi. In particular, the plaintiffs sought to compel the Service to withdraw tax-exempt status from, and refuse to grant it to,

all Mississippi private schools or the organizations which operate them, which:
(1) have been determined in adversary judicial or administrative proceedings to be racially discriminatory; or
(2) which have insubstantial minority enrollments, which are located in or serve desegregating public school districts, and which either (i) were established or expanded at or about the time the public school districts in which they are located or which they serve were desegregating, or (ii) cannot demonstrate that they do not provide racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems.[10]

[13] One week later, this action commenced. Inez Wright, the mother of four black children attending public schools in Memphis, Tennessee, and a number of other similarly situated parents in eight states across the country filed a complaint in the district court, individually, on behalf of their minor children, and as representatives of a class, seeking relief on a nationwide basis similar to that sought with respect to Mississippi in the reopened Green case. Complaint at 3-4, J.A. 11-12. In April 1977, on motion of plaintiffs in both cases, the court consolidated the Green and Wright actions “inasmuch as [they] involve common questions of law and fact.” J.A. 49. This action then became known as the “Wright component” of the consolidated proceedings. In May 1977, W. Wayne Allen, Chairman of the Board of Trustees of the Briarcrest School System in Memphis, was granted leave to intervene in Wright. Intervenor Allen pointed out that Briarcrest was one of the private schools specifically mentioned in the Wright complaint as a “segregated academy.” He participated in Wright as a parent who has chosen to send his children to Briarcrest and as a contributor to that private school system who deducts the contributions on his federal income tax returns. J.A. 41-44; Brief for Intervenor-Appellee at 5-6.

[14] Prompted by the Green and Wright lawsuits, the Service reviewed its procedures and concluded that more specific guidelines were needed to determine whether the “actual practice” of certain schools “conformed to their asserted policies.”[11]
In August 1978, the Service published proposed new procedures for review of a school’s racial policy.[12] After receiving written comments and conducting public hearings on the proposal, the Service, in February 1979, published a revised version.[13] The proposed

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guidelines, as revised, deal primarily with two classes of private elementary and secondary schools — those adjudicated discriminatory in nontax cases, and those with insignificant minority enrollment whose formation or substantial expansion is related to public school desegregation in the community.[14] Such schools “would have been required to make special showings to rebut the indications of racial discrimination.”[15]

[15] Effective October 1, 1979, further IRS action was stayed by Congress through amendments to the Treasury Appropriations Act of 1980.[16] Two riders deal with the issue. One, known as the Dornan amendment,[17] deals specifically with the IRS guidelines proposed in August 1978 and February 1979; it provides that “[n]one of the funds available under [the] Act may be used to carry out [the IRS proposals].” The other, known as the Ashbrook amendment,[18] provides more generally that none of the funds furnished pursuant to the Act shall be used for measures, other than those then in effect, that “would cause the loss of tax-exempt status to private, religious, or church-operated schools.”[19]

[16] Thereafter, on November 26, 1979, the district judge dismissed this action, the Wright component of the consolidated proceedings, stating three grounds, each sufficient in his judgment to warrant the dismissal: first, the Wright plaintiffs lacked standing; second, the action was barred by “the doctrine of nonreviewability”; third, granting the relief requested by th Wright plaintiffs would thwart the express will of Congress, manifest in the Ashbrook and Dornan amendments. Wright v. Miller, 480 F.Supp. 790 (D.D.C. 1979). The same district judge, six months later, entered an order in favor of the plaintiffs i Green. The court enjoined the Service from granting tax-exempt status to Mississippi private schools (1) adjudged to be racially discriminatory or (2) established or expanded at the time of local public school desegregation, unless the schools clearly and convincingly demonstrate that “they do not racially discriminate in admissions, employment, scholarships, loan programs, athletics, and extracurricular programs.” Green v. Miller, No. 1355-69 (D.D.C. May 5, 1980) (clarified and amended June 2, 1980).

[17] The district judge did not supplement his order in Green with an opinion reconciling that decree with his dismissal of th Wright complaint. Both sets of plaintiffs sought review of the same agency action (or inaction). The will of Congress, we believe, does not separate Mississippi from the rest of the nation. An objection to standing, raised when Green was reopened, was denied without opinion.[20] While only th Wright component is before us for review, we note the anomalous result of the district court rulings in the two cases. To obey both court decree and congressional stop order, the Service must apply one set of guidelines to schools in Mississippi and another, less stringent set of procedures to schools outside Mississippi, even schools bearing “the same or similar badge of doubt.”[21]

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[18] II. PLAINTIFFS HAVE STANDING TO SUE[19] A. The District Court’s Position
[20] The district court determined that standing in this case depended on satisfaction of four criteria and that plaintiffs satisfied none of them. First, the court said, plaintiffs asserted no “district, palpable, and concrete injury.”480 F.Supp. at 793. Nor could plaintiffs establish such an injury, according to the district court, for they were “in a dilemma”:

If plaintiffs can prove that a private school is discriminating in direct contravention of the Constitution and federal law, such discrimination is redressable through an ordinary lawsuit in an adversary context filed directly against the offending school. If, on the other hand, plaintiffs cannot prove such discrimination, they have failed to assert a distinct, palpable, and concrete injury and thus lack the requisite standing to assert their claims.

[21] Id. at 794. Plaintiffs urge that this analysis fits a complaint they did not bring. They maintain they have no interest whatever in enrolling their children in a private school. They assail only government action. The sole injury they claim is the denigration they suffer as black parents and schoolchildren when their government graces with tax-exempt status educational institutions in their communities that treat members of their race as persons of lesser worth. Plaintiffs point out that the district court cited, but did not purport to distinguish, Supreme Court decisions recognizing the standing of black citizens, parents, and schoolchildren to challenge government action on that basis:Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550
(1971), aff’g mem. Green v. Connally, 330 F.Supp. 1150
(D.D.C.); Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973); and Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974).

[22] Second, assuming the injury plaintiffs complained of was inflicted by private schools that practiced race discrimination, the court concluded that such an injury was not “fairly traceable” to IRS action. For this conclusion, the court relied dominantly on Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Again, plaintiffs insist, the court misidentified their grievance. Eastern Kentucky might well control, they concede, were they endeavoring to gain access to the private schools. But that is not what they want. Rather, plaintiffs repeat, they seek to stop government from bestowing any advantage on an educational facility that contributes to the perpetuation of racial discrimination in the localities in which they reside.

[23] Third, the district court stated that it was “purely speculative” whether the relief requested would redress plaintiffs’ injury. 480 F.Supp. at 795-96. The loss of tax exemption might not produce any net change in the public school population; schools might forego exemption rather than end any discriminatory conduct; the procedures plaintiffs proposed might not yield fewer tax exemptions than the system the IRS now employs. Regarding the first two points, once more, plaintiffs say, the injury they assert is not the one the district court describes. The very act by the IRS of according tax exemption to a school that discriminates in their vicinity causes immediate injury to them, plaintiffs maintain, and that is the only injury for which they seek redress.

[24] Concerning the likelihood that invigorated IRS procedures would yield fewer tax exemptions, plaintiffs point out that the district court’s dismissal of the case at the threshold precluded any evidentiary submission. They further note that the Commissioner of Internal Revenue had told Congress that existing procedures were “ineffective in identifying schools which in actual operation discriminate against minority students.”Hearings, supra note 1, at 5. Finally, they suggest that the court’s action in Green contradicts its conclusion in Wright
about the “speculativeness” of the relief requested. If tighter IRS procedures are not likely to yield fewer tax exemptions,

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plaintiffs note, it is hard to imagine why the court ordered the Service to adopt such procedures in Green.

[25] As a final point, the district court expressed the view that no genuine article III case or controversy existed because the defendant IRS “seems to have nothing to lose if it were forced to grant less tax exemptions to private schools.”480 F.Supp. at 796. The real losers, the court said, would be parties the plaintiffs had not sued, schools “[p]laintiffs would deprive . . . of their valuable tax exempt status.” Id. Plaintiffs and the Service, the court added, “seem closely allied in terms of the need to promulgate future guidelines.” Id. But it was the IRS that defended successfully against this action in the district court. Nor did the Service exhibit any lack of adversary zeal in the briefs and oral argument it presented to this court. Moreover, a strong advocate of the private schools that resist more stringent guidelines is participating in this action as intervenor. We therefore find that the case has the earmarks of a fully adversary contest.

[26] On this point too, Green stands in jarring contrast. The posture of the IRS is not different in the two cases. While intervenors originally participated in Green and indeed pursued that case in the Supreme Court, no intervenor appears to have participated actively in the reopened Green proceeding as intervenor Allen did in Wright. Nevertheless, the district court treated Green as a genuine case or controversy and, as we recounted earlier, required the Service to tighten its procedures in dealing with Mississippi schools.

[27] B. Divergent Supreme Court Precedent: Eastern Kentucky on the one hand; Green, Norwood, and Gilmore on the other
[28] The law of standing has been described as “extraordinarily uneven.”[22] In the welter and confusion of case law and commentary, there is one point of clear agreement: “[L]ower courts and practitioners especially need Supreme Court guidance.”[23] The guidance the High Court has supplied relevant to the case at hand points in opposite directions Simon v. Eastern Kentucky Welfare Rights Organization, relied upon by the district court, suggests that litigation concerning tax liability is a matter between taxpayer and IRS, with the door barely ajar for third party challenges. Green, Norwood, an Gilmore, on the other hand, indicate that black citizens have standing to complain against government action alleged to give aid or comfort to private schools practicing race discrimination in their communities.

[29] In this opinion, we do not search for a grand solution that will unclutter this area of the law and lead to secure, evenhanded adjudication. Instead, as an intermediate court of review, we select from two divergent lines of Supreme Court decision the one we believe best fits the case before us.

[30] We turn first to Eastern Kentucky. There indigents and organizations of indigents challenged a Revenue Ruling discontinuing a requirement that a hospital, to be classified as “charitable” under section 501(c)(3), must provide free or below cost service to indigents to the extent of its financial ability. After the new Ruling, some of the plaintiffs had been denied hospital services on account of their indigency. The Supreme Court held that plaintiffs lacked standing to bring the suit.

[31] Plaintiffs’ injury, the Court said, was the denial of hospital service. But plaintiffs could not show that the hospitals’ refusal to serve them resulted from the Ruling. “It is purely speculative,” the Court declared, “whether the denials of service specified in the complaint fairly can be traced to [the Ruling] or instead result from decisions

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made by the hospitals without regard to the tax implications.”426 U.S. at 42-43, 96 S.Ct. at 1926-27. Justice Stewart, concurring, commented: “I cannot now imagine a case, at least outside the First Amendment area, where a person whose own tax liability was not affected ever could have standing to litigate the federal tax liability of someone else.” Id. at 46, 96 S.Ct. at 1928.[24]

[32] Plaintiffs do not dispute that it is “speculative,” within th Eastern Kentucky frame, whether any private school would welcome blacks in order to retain tax exemption[25] or would relinquish exemption to retain current practices.[26] They claim indifference as to the course private schools would take. Plaintiffs strenuously argue, however, that Eastern Kentucky is the wrong frame for their case. They assert, in essence, that there is at least one domain “outside the First Amendment area” where a person whose own tax liability is not affected has the requisite standing to challenge the administration of tax law, and that this lawsuit occupies that domain. We agree tha Eastern Kentucky is not the line appropriately followed in the matter before us.

[33] We turn next to the three adjudications that appear to us determinative of the standing issue in this case: the companio Green litigation; Norwood v. Harrison; and Gilmore v. City of Montgomery. All three involved, in common with the matter before us, charges of government conduct alleged to be inconsistent with an overriding, constitutionally rooted national policy against racial discrimination in United States educational facilities. Again in line with the instant case, none involved a claim for relief against private actors.

[34] As we set out earlier, see pp. 822, 823, 825, 826, 82 supra, the plaintiffs in Green, like those in Wright, are black parents and their minor schoolchildren attending public schools in desegregating areas; in both cases, the plaintiffs charged that the Internal Revenue Service has failed, through the inadequacy of its monitoring procedures, to confine tax-exempt status to

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private schools that do not practice racial discrimination. The remedy sought in the two cases, except for its geographical scope, is the same — the institution of procedures adequate to the task. That remedy, plaintiffs in both cases assert, matches precisely the injury they allege.

[35] Norwood, like Green and Wright, was brought by parents of black schoolchildren against a government actor. Plaintiffs sought to enjoin in part the enforcement of Mississippi’s long-established textbook lending program. The Mississippi Textbook Purchasing Board provided free textbooks to all schools in the state, including a number of “all-white, nonsectarian private schools which [had] been formed throughout the state since the inception of public school desegregation.” Norwood v. Harrison, 340 F.Supp. 1003, 1011 (N.D.Miss. 1972), vacated and remanded, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973). Despite the origin of the program in the days before school desegregation, and even if the textbook loans were “motivated by . . . a sincere interest in the educational welfare of all Mississippi children,” 413 U.S. at 466, 93 S.Ct. at 2811, the Supreme Court held the scheme unconstitutional to the extent that it did not “steer clear . . . of giving significant aid to institutions that practice racial . . . discrimination.” Id. at 467, 93 S.Ct. at 2812.

[36] Of prime relevance to the case at hand, the Court in Norwood
plainly stated that it was not critical to the plaintiffs’ claim for relief whether “any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools.” Id. at 465, 93 S.Ct. at 2811 (quoting from 340 F.Supp. at 1013). Chief Justice Burger, writing for the Court, explained:

We do not agree with the District Court in its analysis 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 discrimination even when there is no precise causal relationship 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 facilitate, reinforce, and support private discrimination.

[37] Id. at 465-66, 93 S.Ct. at 2810-11.

[38] Plaintiffs in Norwood, like the plaintiffs here, indicated no interest in attending the private schools that received textbooks at state expense, nor did they show that the textbook subsidy kept those schools afloat. The gravamen of plaintiffs’ complaint was that the state had aided private racial discrimination when the Constitution commanded that government “steer clear” of such action. That complaint was enough, the Court’s disposition clarifies, to entitle plaintiffs to relief. Without departing radically from Norwood, therefore, we cannot accept the district court’s apparent view that plaintiffs here must either pursue relief they do not want — admission of their children to private schools — or allege and prove that withdrawal of tax-exempt status would cause those schools to suffer enrollment declines and, correspondingly, quicken the pace of public school desegregation.

[39] Finally, in Gilmore v. City of Montgomery, black citizens who had brought a successful action in 1958 to desegregate public parks in Montgomery, Alabama, reopened the litigation in 1970 and sought supplemental relief in 1971. They complained that the city was allowing “racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities.” 417 U.S. at 562, 94 S.Ct. at 2421. The Court sustained a lower court injunction to the extent that it barred exclusive temporary use of public recreation facilities by segregated private schools. Citing Norwood, the Court repeated in Gilmore 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.”

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[40] 417 U.S. at 568-69, 94 S.Ct. at 2423-24 (quoting from 413 U.S. at 466, 93 S.Ct. at 2811). While Gilmore suggested that the plaintiffs might not have standing “to claim relief against certain nonexclusive uses by private school groups,” id. at 570 n. 10, 94 S.Ct. at 2425 n. 10, the Court had little difficulty concluding that plaintiffs were entitled to challenge special reservation of playing fields for such groups.

[41] Like the tax-exempt status at issue here, the exclusive temporary use of park facilities in Gilmore was a government benefit not available to the public generally. Government must “steer clear” of providing such benefits to racially discriminatory local groups. Norwood, 413 U.S. at 467, 93 S.Ct. at 2812. The Gilmore plaintiffs, black citizens of the community, were considered appropriate enforcers of that obligation although they made no showing that the segregated schools would change their policies or close up shop were they denied specially reserved access to park football fields and baseball diamonds. All that could be said with security was that the special arrangements made life easier for such schools.

[42] Green, Norwood, and Gilmore presented plaintiffs whose standing seems to us indistinguishable on any principled ground from the standing of the plaintiffs in this action. If the plaintiffs before us are not entitled to question the IRS practices at issue here, it is difficult to comprehend why th Green, Norwood, and Gilmore plaintiffs were entitled to challenge the tax exemptions, textbook loans, and specially reserved park facilities at issue in those cases.[27] We therefore inquire next whether those precedents remain vital, or whether they have been overruled, sub silentio, by Eastern Kentucky.

[43] The Supreme Court’s decisions in Green, Norwood, an Gilmore did not focus on standing as Eastern Kentucky did. But as Eastern Kentucky emphasized, “[t]he necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement. A federal court cannot ignore this requirement without overstepping its assigned role in our system of adjudicating only actual cases and controversies.” 426 U.S. at 39, 96 S.Ct. at 1925. Absent explicit Supreme Court direction to do so, we resist impugning High Court precedent by indulging the assumption that the Court reached the merits in Green, Norwood, and Gilmore in disregard of the standing requirement. Accord, Moton v. Lambert, 508 F.Supp. 367, 369-70 (N.D.Miss. 1981). Such an assumption appears all the more unwarranted in view of the indications in all three cases that the Court’s attention was drawn to the issue.

[44] In Green, standing was addressed summarily in the lower court. 309 F.Supp. at 1132.[28] More significantly, the Jurisdictional Statement in Green spotlighted the question. Filed by intervenor Coit, as representative of a class of parents and children who supported or attended all-white private

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schools, the Jurisdictional Statement listed plaintiffs’ standing first among “Questions Presented by the Appeal.” Jurisdictional Statement at 11, Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971). As Coit framed the issue: “Was the lower court in error in holding that plaintiffs had constitutional standing to restrain federal recognition of educational exemptions for private segregated schools?” Id. While we do not ascribe to the Supreme Court’s summary affirmance in Green
wholesale endorsement of the district court’s views,[29]
the High Court’s disposition is binding upon us until such time as the Court informs us otherwise. Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 2289-90, 45 L.Ed.2d 223
(1975). As already observed, we do not believe a lower court should cast aside the Supreme Court’s judgment in Green by ascribing to that tribunal a rush to decision, heedless of core justiciability requirements.

[45] In Norwood, as in Green, plaintiffs’ standing was challenged in the lower court. 340 F.Supp. at 1007. However, the issue was not pursued on appeal. But, of course, the question could have been raised by the Supreme Court sua sponte if it entertained doubt as to plaintiffs’ satisfaction of a core Article III requirement. Finally, in Gilmore, the Court adverted specifically to the requirement that plaintiffs have standing to pursue the relief requested. 417 U.S. at 570 n. 10, 94 S.Ct. at 2424 n. 10.

[46] In Eastern Kentucky, the Supreme Court viewed plaintiffs’ sole injury as inflicted by the hospitals that declined to serve indigents, and not by the Internal Revenue Service. 426 U.S. at 40-41, 96 S.Ct. at 1925-26. In contrast, the Court did not approach Green, Norwood, and Gilmore as assaults mounted against government action in an indirect effort to gain access to a nongovernmental facility. Rather, the Court recognized the right of black citizens to insist that their government “steer clear” of aiding schools in their communities that practice race discrimination. In view of the centrality of that right in our contemporary (post-Civil War) constitutional order, we are unable to conclude that Eastern Kentucky speaks to the issue before us. We therefore follow Green, Norwood, and Gilmore, unless and until the Supreme Court instructs us otherwise, and accordingly find no standing impediment to plaintiffs’ claim.

[47] III. APPROPRIATIONS RIDERS STAYING IRS INITIATIVES DO NOT PRECLUDE THE DISTRICT COURT FROM FASHIONING A REMEDY
[48] In amendments to the Treasury Appropriations Act for fiscal year 1980,[30] Congress twice prohibited the Internal Revenue

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Service from using appropriated funds to formulate or carry out new guidelines which would cause any private school to lose tax-exempt status.[31] These riders, known as the Dornan and Ashbrook amendments, were intended both to preserve guidelines the IRS had adopted prior to August 1978 to identify racially discriminatory private schools,[32] and to prevent the Service from displacing or augmenting existing guidelines with more aggressive procedures.[33] In this case, the district court read into the congressional action more than a restraint on the IRS. It found that the action inhibited courts as well. Court-ordered rules of the kind plaintiffs seek, the district judge said, “would be completely contrary to Congressional intent and policy.” 480 F.Supp. at 799. That consideration alone, he concluded, warranted threshold dismissal of the action.[34]

[49] Intervenor Allen argues with force in support of the position adopted in this case by the district judge. The appropriations riders reflect a congressional determination that existing IRS procedures are adequate to identify racially discriminatory schools, intervenor Allen maintains,[35] therefore a court determination to the contrary would defy the will of Congress. Plaintiffs, on the other hand, maintain that the restraints imposed by the appropriations act riders, by their terms, apply only to IRS-initiated action and do not purport to control court adjudication. Read to extend to a federal court’s remedial authority, plaintiffs assert, the riders could not withstand constitutional review.[36] The plaintiffs invoke both separation of powers doctrine[37] and the proscription of government support for race discrimination.[38]

[50] Our starting point is a proposition not disputed in this litigation or in conflict with the appropriations riders: racially discriminatory institutions are ineligible for tax-exempt status under section 501(c)(3) of the Internal Revenue Code. As the court held in Green v. Connally,[39] schools that do not adopt and administer nondiscriminatory admissions practices do not qualify for tax benefits otherwise available to nonprofit educational organizations. Although the Green
decision rests on statutory interpretation,[40]

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the court indicated that its ruling was impelled by constitutional considerations: “[A] contrary interpretation of the tax laws would raise serious constitutional questions”; “it would be difficult indeed to establish” that schools practicing racial discrimination could be ranked as tax-exempt organizations by a federal authority “consistently with the Constitution.”330 F.Supp. at 1164-65.[41]

[51] Next, as we set out earlier,[42] in 1976 this action was commenced, and the Green case was reopened, based on the charge that the IRS had failed to enforce effectively the mandate that racially discriminatory schools be denied tax exemptions. In response, the IRS, in August 1978, released proposed new guidelines and, in February 1979, published a revised version that included adjustments to meet some, but by no means all, of the critical commentary. Explaining to Congress why the Service sought to strengthen its procedures, the Commissioner of Internal Revenue reported that, under the existing rules, a number of schools retained tax-exempt status although they had been adjudged racially discriminatory by federal courts in nontax cases.[43] In reaction to the proposed new IRS guidelines, Congress passed the appropriations limitations.[44] Thus the IRS proposals, framed under the impetus of pending litigation, were shelved by a “stopgap” legislative technique[45] that leaves the Service in an ambiguous position.[46]

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[52] Turbulent issues under our fundamental instrument of government would confront us were we to read the appropriations riders as more than a temporary stop order on IRS initiatives.[47] We see no reason to grapple with those issues in view of the representations made in Congress concerning the effect of the riders:

We are just saying do not go forward with these broad [IRS] regulations or procedures, whatever you want to call them, until the Congress or a court
affirmatively acts on that subject. That is all we are trying to do.

[53] 125 Cong.Rec. H5882 (daily ed. July 13, 1979) (remarks of Rep. Ashbrook) (emphasis supplied).[48] As thus described, the riders are holding orders and they hold only the IRS, they do not purport to control judicial dispositions.

[54] The district judge who, in this action, ruled out a judicial decree going beyond existing IRS guidelines, nevertheless granted such relief in the reopened Green case.[49] His rulings in the two proceedings have been perceived as “contradictory” and “inconsistent.”[50] His sole explanation for the divergent dispositions appears in a footnote in this case supplying two reasons: (1) the “jurisdictional” arguments he found decisive i Wright had been rejected by another judge in Green before the two cases were consolidated; (2) the three-judge’ court had “affirmed” the standing of the Green plaintiffs prior to granting injunctive relief and the only issue open in that case was “whether or not defendants have complied with the injunction issued in 1971.” 480 F.Supp. at 793 n. 1.

[55] The district judge did not explain why he regarded Green as uninstructive — without precedential value — on the “jurisdictional” arguments in Wright, nor did he clarify why he considered congressional action significant in Wright but not in Green. It is true that the Green litigation has a long history and involves Mississippi private schools only, while the instant case was initiated some seven years after Green
commenced and encompasses private schools in all states. But the appropriations riders do not distinguish Mississippi from the rest of the nation. Nor did the original Green court interpret section 501(c)(3) for Mississippi only. Rather, that court declared the principle underlying its decision “applicable to schools outside Mississippi with the same or similar badge of doubt.” 330 F.Supp. at 1174.[51] We believe the district judge correctly determined that no congressional action deterred him from moving beyond existing IRS guidelines in Green, and that he erred in rejecting at the outset any prospect for similar movement in this case.

[56] IV. NO NONREVIEWABILITY DOCTRINE IMPEDES ADJUDICATION ON THE MERITS
[57] Referring to “the doctrine of nonreviewability,” the district judge deemed it

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inappropriate to adjudicate this action even if no standing problem barred the way and no congressional suggestion held him in check. 480 F.Supp. at 797-98. He relied on no statutory source for the doctrine invoked.[52] Citing two cases, however,[53] he reasoned that courts are not equipped to supply technical detail and monitoring services for an agency’s administration of a complex statutory scheme. He concluded the discussion under this heading by observing that judicial revie vel non was not the issue. Rather, the core question was the type of relief appropriate and feasible. In his judgment, appropriate relief could be gained through litigating case by case whether a particular school excludes or otherwise discriminates on the basis of race. We find no solid ground for dismissal of this action on the asserted “nonreviewability” premise.

[58] First, as we pointed out in preceding portions of this opinion, in suggesting that appellants’ remedy lies in case-by-case litigation against each allegedly offending school, the district court focused on an injury other than the one the complaint describes. To recapitulate, appellants disclaim any interest in gaining admission to the schools in question. Rather, they complain of conduct by their government. They assert that current IRS practice permits schools that in fact discriminate on the basis of race to acquire and retain section 501(c)(3) status and, thereby, to attract tax-deductible contributions for their maintenance. Part of each such contribution, appellants aver, constitutes prohibited government support for race discrimination in educational facilities.[54] Such government support, appellants contend, stigmatizes black schoolchildren and their parents by signaling

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official approbation of educational institutions that perpetuate in local communities notions, once prevalent in our nation, of the inferior quality of the black race. Thus their challenge, their alleged injury, and the relief they seek are directed to what a government agency, the IRS, is doing. They do not challenge private action, and it is not the prerogative of a district judge to turn away the lawsuit they have in fact instituted solely because they might have instituted a claim of a different character, one challenging private rather than government action.

[59] Second, we turn to the case as appellants have drawn it, a case against a government agency alleged to furnish economic benefits to racially discriminatory local educational institutions. We believe that, should appellants succeed on the merits,[55] the remedial problem can be handled without large scale judicial intervention in the administrative process. This case does not involve any arcane question of tax law; its sensible adjudication requires no entanglement with complex, technical, interrelated aspects of the Internal Revenue Code and its administration.[56] The district court should not and need not become a “shadow [C]ommissioner of Internal Revenue” or “the administrator of a nationwide tax enforcement program.”480 F.Supp. at 797. Guided by its own experience[57] and that of other courts,[58] the district court is equipped to accord relief that does not “impose grave burdens” or involve “unfathomable effort.” Id. The court may call for the parties’ participation in framing a manageable decree and may reject proposals that, in their scope or particularity, reach for more than is necessary to provide effective relief.

[60] In sum, neither deference to administrative expertise, nor potential action by the legislature supplies an acceptable basis for avoiding decision on the merits in this case. The area is not one in which tax experts have special competence,[59] nor is the Service in a comfortable position to reevaluate the adequacy of current procedures with a view to alteration.[60] Congress is not inhibited by the pendency of this case or Green from addressing the issue by revising section 501(c)(3) so that the provision speaks more precisely,[61] so long as such revision comports with constitutional limitations.

[61] CONCLUSION
[62] We have held that the plaintiffs here have standing to pursue this action, that

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the district court retains independence to fashion a remedy should plaintiffs succeed on the merits, and that no nonreviewability doctrine impedes adjudication on the merits. Our rulings do not reach the substance of plaintiffs’ claims. After affording all parties a full and fair opportunity to present their positions, the district court will be equipped to decide whether plaintiffs have established a claim for relief regarding the administration of section 501(c)(3).[62]

[63] For the foregoing reasons, the judgment of the district court is reversed and the case is remanded for proceedings consistent with this opinion.

[64] It is so ordered.

[65] TAMM, Circuit Judge, dissenting:

[66] Under cover of selecting between conflicting lines of Supreme Court precedent, the court today boldly creates new law on the jurisdiction of federal courts. Under cover of selecting the most comfortable precedent, the court in fact oversteps well-established limits upon the power of the judiciary. We are not required, as the majority suggests, to choose among Supreme Court precedent as we would footwear — selecting that which “best fits the case before us.” Instead, we need only examine carefully the law of standing as it presently exists and properly apply that law to the case before us.

[67] The majority’s cleverly constructed and ostensibly reasonable opinion hinges initially upon the setting up of conflicting lines of Supreme Court precedent. In one, characterized by the majority as the “Eastern Kentucky” line, the Court addressed at some length the question of standing to sue in federal courts. In the other, characterized as the “Green, Norwood, and Gilmore” line, the Court addressed the constitutionality of governmental involvement in racial discrimination. Although a reading of the majority’s analysis of this latter line of cases may lead one to think otherwise, the Supreme Court made no statement in these cases that can be construed as justifying the result reached by the court today. In fact, the only remarks by the Court upon the question of standing make clear that the traditional requirements of standing must be satisfied in this case as in any other. Gilmore v. City of Montgomery, 417 U.S. 556, 571 n. 10, 94 S.Ct. 2416, 2425 n. 10, 41 L.Ed.2d 304 (1974).

[68] Despite this explicit reminder, the majority interprets this line of precedent as requiring it to abandon long-established standing principles, principles limiting the exercise of judicial power to the redress of actual injury. To assess the necessity of such an interpretation, we must first turn to those cases by which the majority claims to be bound. In Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971), the Supreme Court affirmed without opinion a decision that the Internal Revenue Code required the denial of tax exemptions for racially discriminatory private schools and of tax deductions for contributions to such schools. The Court also affirmed the awarding of injunctive relief barring the IRS from granting tax-exempt status to any private school in Mississippi which did not adopt a racially nondiscriminatory admissions policy and communicate that policy to the community. The Service adopted national guidelines in accord with this decision.

[69] Plaintiffs’ standing was not addressed in the district court decision affirmed by the Supreme Court. Green v. Connally, 330 F.Supp. 1150 (D.D.C. 1971). Only in its ruling

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on the preliminary injunction did the district court deal with the issue at all, and even then its views were expressed in only one sentence. Green v. Kennedy, 309 F.Supp. 1127, 1132
(D.D.C.), appeal dismissed sub nom. Cannon v. Green, 398 U.S. 956, 90 S.Ct. 2169, 26 L.Ed.2d 539 (1970). Further elaboration of this issue was not undertaken at the Supreme Court: the standing of the plaintiffs was challenged only by the intervenor Coit, and only in the form of an initial question in the Jurisdictional Statement without any further development.

[70] The majority opinion mischaracterizes the status of Green at this point as a “sharp adversary contest . . . .” Majority opinion (Maj. op.) at 823. In fact, the Supreme Court has explicitly stated that, because the IRS had reversed its position prior to appeal, this case did not involve “a truly adversary controversy.” Bob Jones University v. Simon, 416 U.S. 725, 740
n. 11, 94 S.Ct. 2038, 2047 n. 11, 40 L.Ed.2d 496 (1974). For that reason, moreover, the Court declared that this case lacked “precedential weight . . . .” Id. See also Prince Edward School Foundation v. United States, 450 U.S. 944, 101 S.Ct. 1408, 1408
n. 1, 67 L.Ed.2d 376 (1981) (Rehnquist, J., joined by Stewart and Powell, JJ., dissenting from denial of certiorari). The majority opinion today thus declares itself bound on the issue of standing by a Supreme Court affirmance without opinion, in which the issue of standing was raised only in an intervenor’s list of questions presented, and where the Court itself has explicitly undermined the precedential status of that affirmance. I find such a view of precedent disturbing[1] and believe that this court has never before advanced such a position.[2]

[71] The majority opinion attempts to support the result it reaches by contrasting the action of the district court upon the reopening of Green with its action in the present context. Accordingly, the majority emphasizes at several places the similarity of these two cases, while pointing out their dissimilar dispositions. Maj. op. at 826, 827, 828, 835. Observing that the same district court judge ruled in both cases, the majority opinion suggests that such an “anomalous result” is irreconcilable

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and even arbitrary. A review of the procedural histories of these cases, however, reveals the fallacy of this suggestion. For this reason it is appropriate to set forth these histories before proceeding further.

[72] Mississippi plaintiffs instituted Green in 1969. In 1970 a three-judge court issued a preliminary injunction against the IRS and noted, albeit summarily, that plaintiffs possessed standing Green v. Kennedy, 309 F.Supp. 1127, 1132 (D.D.C.), appeal dismissed sub nom. Cannon v. Green, 398 U.S. 956, 90 S.Ct. 2169, 26 L.Ed.2d 539 (1970). The court did not address the question of standing upon issuance of the permanent injunction. Green v. Connally, 330 F.Supp. 1150 (D.D.C.), aff’d mem. sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971).

[73] The Green plaintiffs reopened this case in 1976, one week prior to the filing of the action here on appeal. Wright an Green were then consolidated and, on May 17, 1977, the late Judge Waddy heard motions to dismiss that raised the precise jurisdictional issues before us today. During this hearing Judge Waddy emphasized at several points his belief that “separate considerations” governed the two cases. See, e. g., Hearing Transcript of May 17, 1977, at 18. At one such point, he aptly characterized the standing argument pressed by the Wright
plaintiffs’ counsel as being that “you’re Black and a citizen, and live in South Carolina,” and thereby possess standing. Id.
at 91. At the conclusion of the hearing, Judge Waddy denied the Government’s motion to dismiss in Green but took the motion i Wright under advisement. The court found that the Green
plaintiffs “have a right to proceed to determine whether or not that there has been goodfaith compliance with the Order of this Court and if not, then the Court has the duty and responsibility to amend or supplement its prior Decree in such manner as to affect (sic) the purposes of the original Decree.” Id. at 106-07.

[74] Thus, before Green had reached the chambers of the present district court judge, not only had two other district courts sustained plaintiffs’ standing, but the Supreme Court had affirmed, however summarily, the granting of the permanent injunction. In these circumstances, therefore, it would appear reasonable for the district court to accept the prior rulings on standing as the law of the case. See United States ex rel. Epton v. Nenna, 446 F.2d 363, 365-66 (2d Cir.), cert. denied, 404 U.S. 948, 92 S.Ct. 282, 30 L.Ed.2d 265 (1971). Although “law of the case” principles do not apply as stringently to jurisdictional questions such as standing,[3] it is not necessary for us to decide whether this failure to reconsider standing was erroneous. At the least, these disparate histories provide a logical explanation for the district court’s seemingly disparate treatment of these related matters. The majority opinion chastizes the district court for failing to “explain why [it] regarded Green as uninstructive — without precedential value — on the `jurisdictional’ arguments in Wright . . . .” Maj. op. at 835. I, on the other hand, commend the district court both for its refusal to adopt the view of precedent espoused today by the majority and for its attempt to apply the current law of standing to what is, after all, a question of standing.

[75] Unlike Green, the two other cases “binding” the majority are dispositions by opinion. Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973); Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974). In Norwood,

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however, as in Green, the Court made no mention of the plaintiffs’ standing. The district court, ruling the textbook program constitutional, had sustained plaintiffs’ standing in one sentence, 340 F.Supp. at 1007,[4] and, as the majority opinion points out, this “issue was not pursued on appeal.” Maj. op. at 835. In Gilmore, on the other hand, reference was made to the question of standing. 417 U.S. at 570-71 n. 10, 94 S.Ct. at 2424-25 n. 10. Moreover, this reference deserves more attention than that received from the majority’s passing allusion — for this reference demonstrates the fallacy of the majority’s reliance upon either Gilmore or Norwood to sustain the standing of the plaintiffs presently before the court.

[76] As the majority opinion notes, maj. op. at 830, black citizens who had won the desegregation of public parks in Montgomery, Alabama in 1958 reopened that litigation in 1970. 417 U.S. at 560, 94 S.Ct. at 2419-20. Filing a motion for supplemental relief in 1971, they alleged that the city was permitting racially segregated schools, groups, and clubs to use public recreational facilities. The district court enjoined the city from permitting use of its recreational facilities by any private school that was racially segregated or that had a racially discriminatory admissions policy. The court of appeals sustained that part of the injunction which restrained the use of facilities when that use was “exclusive” and not in common with other citizens, but reversed that part of the district court order enjoining nonexclusive enjoyment of those facilities by private school children.

[77] Defining “exclusive use” as the possession and control of an entire facility by a private group, the Supreme Court sustained the injunction to the extent of prohibiting such use by racially segregated private schools. The Court found that “the city’s policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, `enclaves of segregation’ and deprived petitioners of equal access to parks and recreational facilities.” Id. at 566, 94 S.Ct. at 2423. As to the modification made by the court of appeals, however, permittin nonexclusive access to public recreational facilities even by private organizations having racially discriminatory admissions policies, the Court reversed, stating:

Upon this record, we are unable to draw a conclusion as to whether the use of zoos, museums, parks, and other recreational facilities by private school groups in common with others, and by private nonschool organizations, involves government so directly in the actions of those users as to warrant court intervention on constitutional grounds. . . . The questions to be resolved and the decisions to be made rest upon careful identification of the different types of city facilities that are available and the various uses to which they might be put by private groups.

[78] Id. at 570, 94 S.Ct. at 2424. It thus remanded the case to the district court.

[79] At this time the Court also remarked upon the standing of plaintiffs on remand.

[W]e are not prepared, at this juncture and on this record, to assume the standing of these plaintiffs to claim relief against certain nonexclusive uses by private school groups. The plaintiffs in Norwood
were parties to a school desegregation order and the relief they sought was directly related to the concrete injury they suffered. Here, the plaintiffs were parties to an action desegregating the city parks and recreational facilities. Without a properly developed record, it is not clear that every nonexclusive use of city facilities by school groups, unlike their exclusive use, would result in cognizable injury to these plaintiffs. The District Court does not have carte blanche authority to administer city facilities simply

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because there is past or present discrimination. The usual prudential tenets limiting the exercise of judicial power must be observed in this case as in any other.

[80] Id. at 570-71 n. 10, 94 S.Ct. at 2424-25 n. 10 (emphasis added). The Supreme Court thus refused to assume that black citizens of Montgomery would suffer “cognizable injury” from, and thereupon have the requisite standing to challenge, any use of public recreational facilities by private school groups, even those groups with racially discriminatory admissions policies. Instead, because nonexclusive use, by definition, meant that facilities were available to other persons, the Court indicated that an examination of challenges to such uses should focus upon their actual impact upon plaintiffs. Those plaintiffs who could successfully establish some such injury would demonstrate the personal stake in the controversy necessary to the invocation of judicial relief.

[81] In this brief glance at standing, the Court made clear that in cases concerning alleged racial discrimination, as elsewhere, both the constitutional and prudential limitations upon the exercise of judicial power must be observed. That such limits were observed in Gilmore and Norwood seems evident. I Norwood, the plaintiffs, parties to a school desegregation order, challenged the constitutionality of a Mississippi state law that authorized the provision of free textbooks to all
schoolchildren regardless of the admissions policies of the schools they attended. The relief they sought and obtained would thus end state aid to discriminatory schools and was therefore “directly related to the concrete injury they suffered.” Id. I Gilmore, the plaintiffs, parties to an action desegregating public parks, challenged the exclusive use of facilities that “created, in effect, `enclaves of segregation'” and thus deprived them of equal access to recreational facilities. Id. at 566, 94 S.Ct. at 2423. The relief they sought and obtained would thus end state action that “operated directly to contravene an outstanding school desegregation order.” Id. at 568, 94 S.Ct. at 2423.[5]

[82] Similar observance of these limitations requires that this court determine initially whether the plaintiffs here have “suffered `some threatened or actual injury resulting from the putatively illegal action . . . .'” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (quotin Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973)).[6] In this case plaintiffs allege two injuries. First, they allege that the exemptions

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granted by the IRS “constitute tangible financial aid and other assistance to racially segregated education.” Complaint at 3, Appendix at 11. Second, they allege injury that is, at first glance, similar to that alleged in Gilmore: interference “with the efforts of federal courts, HEW and local school authorities to desegregate racially dual school systems.” Id. The allegations of actual injury made here must be uncovered with some care.

[83] The majority opinion apparently holds that the “very act by the IRS of according tax exemption to a school that discriminates . . . causes immediate injury to [plaintiffs] and that is the only injury for which they seek redress.” Maj. op. at 827. In other words, because plaintiffs allege the violation of their constitutional rights, they have alleged injury. This approach apparently adopted by the court today postulates unlimited judicial power. The Supreme Court has rejected similar attempts to circumvent the limitations imposed by Article III. In O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), to take only one example, plaintiffs alleged that specific city and county officials had engaged in various patterns and practices of conduct, systematically depriving plaintiffs of their constitutional rights. Under the approach adopted by the court today, it would seem that these plaintiffs, by alleging violation of their rights, had alleged injury sufficient to confer jurisdiction upon a federal court. The Supreme Court, however, reached a different conclusion. After examining closely the allegations of injury placed before it, the Court determined that while plaintiffs had alleged the violation of constitutional rights, “[n]one of the named plaintiffs [was] identified as himself having suffered any injury in the manner specified.” Id. at 495, 94 S.Ct. at 676. On that basis the Court denied plaintiffs standing. This decision in and of itself thus forbids the approach advanced by the majority today. See also Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154
(1971) (alleged violation of First Amendment rights no substitute for specific injuries).

[84] The second injury that plaintiffs claim — interference with their court-ordered right to a desegregated public education — does not represent actual injury because plaintiffs fail to allege the necessary components of such a claim. “Interference” only takes place upon the actual violation of plaintiffs’ constitutional rights: in this context, through the use by private schools of racially discriminatory admissions policies.[7] The complaint does not allege discrimination by these named schools against these plaintiffs. Although it is somewhat difficult to ascertain from its anfractuous opinion, the majority apparently reads into this complaint the allegation that the target schools therein mentioned discriminate on racial grounds. See, e. g., maj. op. at 829 n. 24 (“the heart of plaintiffs’ complaint is that government grac[es] raciall discriminatory educational facilities with tax-exempt status . . . .”) (emphasis added). I think it unnecessarily generous so to replead the plaintiffs’ complaint. For lack of a specified claim of discrimination, therefore, the complaint must fail as an attempt to invoke judicial relief against actions by a third party, here the Internal Revenue Service, for allegedly contributing to “interference” with a court-ordered right to desegregated education.[8]

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[85] What the plaintiffs actually challenge here is the adequacy of agency enforcement procedures, arguing that the IRS has failed to weave its net of enforcement fine enough to catch all of the private schools that may discriminate on the basis of race. The majority concludes that such a contention is sufficient to confer jurisdiction upon a federal court. This approach to the question of standing mandates continuing judicial supervision of all public agencies whose enforcement of the law touches upon the constitutional rights of citizens. Cf. Reporters Committee for Freedom of the Press v. American Telephone Telegraph Co., 593 F.2d 1030, 1069-70 (D.C. Cir. 1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979). Such an approach cannot be justified.

[86] Under Supreme Court precedent, this contention cannot support a federal court’s exercise of jurisdiction. As this court recently noted, such precedent makes clear that an

asserted interest in the proper administration of the laws is a generalized one shared by all other citizens. Such an abstract injury is insufficient for standing. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. [208] at 217, 219-21 [94 S.Ct. 2925, 2930, 2931-32, 41 L.Ed.2d 706] . . . . In Reservists, the Supreme Court held that standing to sue may not be predicated upon an interest that is held in common by all members of the public, such as is present in this case . . . . Although the proper administration of the laws serves the interests of all, “[t]he proposition that all [laws] are enforceable by any citizen simply because citizens are the ultimate beneficiaries . . . has no boundaries.” Id. at 226-27 [94 S.Ct. at 2934-35].

[87] Daughtrey v. Carter, 584 F.2d 1050, 1058 (D.C. Cir. 1978). See also Goldwater v. Carter, 617 F.2d 697, 709-10 (D.C. Cir. 1979) (en banc) (Wright, C. J., concurring in the result) (“All Americans have a stake in seeing that their leaders act according to the constitutional scheme. The question here is whether these [plaintiffs] have a specific personal stake in the outcome of the case.”) (emphasis added), vacated, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979). As counsel for appellants conceded at oral argument, all citizens have an interest in the elimination of discrimination. The majority cannot, therefore, justify its grant of standing upon the assertion of an interest, however strongly felt, in the effective administration of the tax laws.

[88] Appellants contend that they have more than a general interest in the effectiveness of IRS procedures. They claim to suffer “distinct and palpable injury when discriminatory private schools receive or retain tax exemptions.” Brief for Appellants at 30. The majority opinion attempts to particularize this asserted interest by characterizing plaintiffs’ injury as “the denigration they suffer as black parents and schoolchildren when their government graces with tax-exempt status educational institutions in their communities that treat members of their race as persons of lesser worth.” Maj. op. at 827. A similar reliance on ethnic affinity, however, was recently held by this court to be insufficient to constitute the personal stake requisite to standing.

[89] In American Jewish Congress v. Vance, 575 F.2d 939
(D.C. Cir. 1978), Jewish citizens challenged the federal government’s participation in, and implementation of, certain cooperative programs between the United States and Saudi Arabia. Plaintiffs contended that the implementation of “any program or activity involving the Government of Saudi Arabia which directly or indirectly discriminates against American citizens by reason of their Jewish religion, ancestry, or identity” was unconstitutional. Complaint at 9. The plaintiffs before the court were the American Jewish Congress, a nonprofit association of American Jews, and six individual members of the Congress.

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Four of the six individuals claimed the right to challenge the government action solely as citizens, taxpayers, and persons “of the Jewish religion, ancestry, and identity.” 575 F.2d at 945. One plaintiff alleged that he was deterred from applying for a job with a corporation operating in Saudi Arabia because of Saudi Arabian discrimination; the other individual plaintiff claimed that he was denied a job with another organization solely because of his Jewish religion. This court held that none of these plaintiffs had standing to challenge the United States involvement in this alleged discrimination.[9]

[90] Those plaintiffs who claimed standing on the basis of their status as American Jewish citizens argued that the implementation of cooperative programs between this country and Saudi Arabia “had the purpose and effect of deterring and discouraging American Jews from applying for or otherwise seeking employment and other economic opportunities resulting from the Agreement on Saudi-Arabian-United States Cooperation, although but for their religion, ancestry or identity they are qualified therefor.” Complaint at 8. Despite this allegation of substantial governmental involvement in illegal discrimination, this court did not automatically extend to those plaintiffs the right to challenge that involvement. Instead the court proceeded to assess the injury purportedly arising from that governmental involvement. A direct comparison of the plaintiffs in the case at hand with these particular plaintiffs reveals the even more attenuated nature of the allegations presented herein. These plaintiffs are black parents and their schoolchildren who challenge governmental involvement in the form of tax exemptions to racially segregated private schools. Nowhere do the plaintiffs allege that they sought admission to these schools, that they were deterred from applying, or even that the schools engage in unlawful discrimination. In essence, they allege only that the inadequacy of Service procedures encourages the development of racially segregated schools, thereby undermining their right to public school desegregation. It would appear, therefore, that the plaintiffs here are in no better position than the Jewish citizens above who challenge United States involvement with Saudi Arabian discrimination solely as American citizens of the Jewish religion. “Once again, however, the plaintiffs have fallen short of alleging the type of concrete and direct injury requisite to invocation of federal judicial power.”See ex Parte Levitt, 302 U.S. [633] at 634, 58 S.Ct. 1 [at 1, 82 L.Ed. 493]. 575 F.2d at 945.

[91] The court today thus either distinguishes American Jewish Congress because the plaintiffs before us are black, see, e. g., maj. op. at 832 (noting the “centrality” in our post-Civil War constitutional order of the right of black citizens to be free from discrimination), or implicitly overrules that decision. I find it difficult to credit the majority’s apparent distinction of that case, maj. op. at 829 n. 24, which suggests that future plaintiffs may secure standing in federal court simply by alleging that “the government action in question contributed to perpetuation within our borders of a view of [them] as persons of lesser worth,” id., especially when the American Jewish Congress plaintiffs complained specifically about “the degree to which American citizens of the Jewish faith are discriminated against . . . .” Brief for Appellants at 6, American Jewish Congress v. Vance, 575 F.2d 939 (D.C. Cir. 1978). Moreover, this distinction simply begs the question since every form of illegal discrimination presumably contributes to a view of that class of citizens as persons of lesser worth.

[92] The consistent emphasis throughout the majority opinion upon the significance of

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the “right” asserted in this case suggests another impermissible factor underlying the court’s decision. Relying primarily upon certain language from Norwood, the court defines the right asserted here as “the right of black citizens to insist that their government `steer clear’ of aiding” institutions that discriminate. Maj. op. at 832. Because of the significance of this right, it seems, the majority does not apply the principles of standing applicable to other plaintiffs attempting to assert other rights. Consequently, underlying the whole of the majority opinion is a rejection of the Supreme Court’s statement in Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968), that “[t]he fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” (emphasis added). In other words,

no matter how inclined we may be toward appellant’s position on the merits, we must first satisfy ourselves that he “has `alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.”

[93] Reuss v. Balles, 584 F.2d 461, 465 (D.C. Cir. 1978) (quotin Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962))), cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978). See also Doherty v. Rutgers School of Law — Newark, 487 F.Supp. 1291, 1298 (D.N.J. 1980).[10] The majority thus errs by finding standing through “premature evaluation of the merits of [plaintiffs’] complaint.” Schlesinger v. Reservists Committee, 418 U.S. at 225, 94 S.Ct. at 2934.

[94] Plaintiffs have argued to this court that as black parents and schoolchildren they are entitled to challenge IRS enforcement procedures, the inadequacy of which they claim interferes with their right to a desegregated education. I believe, however, that these plaintiffs have failed to plead injury in fact.[11] They have failed to “demonstrate a likelihood of benefit wholly apart from a defendant’s response to the district court’s decree.”City of Hartford v. Town of Glastonbury, 561 F.2d 1032, 1053
(2d Cir. 1977) (en banc) (Kaufman, J., concurring), cert. denied, 434 U.S. 1034, 98 S.Ct. 766, 54 L.Ed.2d 781
(1978).[12] Nowhere do they allege

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the predicate of discrimination necessary to invoke judicial power. Nevertheless, this court confers standing upon these plaintiffs in a decision that masquerades as a mere application of precedent.

[95] The court’s decision today reflects an approach to the question of standing that is simply and clearly wrong, the product of an impermissible shift in focus from the right of these plaintiffs to make their challenge to the rights they wish to assert. In its haste to afford plaintiffs an opportunity to vindicate their chosen cause, the majority not only expands significantly the law of standing but also oversteps the constitutional limits of its jurisprudential power.[13] As other courts have recognized, issues of great import fail to justify such overreaching.[14]
This court would do well, therefore, to attend the following admonition of the Second Circuit:

The Supreme Court has warned repeatedly in the past of the hazards in straying from the Constitutional requirement of a case or controversy. Absent adherence to the Constitutional mandate, courts become forums for the vindication of personal values and political preferences, usurping the legislative branch as the focus for public debate and lobby, and usurping as well the executive’s primary

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responsibility for the implementation of federal law. Federal courts cannot, consistent with the Constitution, exercise their jurisdiction to vindicate litigants’ chosen causes; they are empowered only to grant specific relief in response to, and in order to remedy, a particularized showing of individual injury.

[96] Evans v. Lynn, 537 F.2d 571, 595-96 (1976) (en banc) (footnotes omitted), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977).