W. WAYNE ALLEN, PETITIONER V. INEZ WRIGHT, ET AL. DONALD T. REGAN, SECRETARY OF THE TREASURY, ET AL., PETITIONERS V. INEZ WRIGHT, ET AL. No. 81-757, No. 81-970 In the Supreme Court of the United States October Term, 1983 On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Reply Brief for the Federal Petitioners Responents' argument is based almost solely on an analogy to Norwood v. Harrison, 413 U.S. 455 (1973) (Resp. Br. 14-21, 23, 26-29). Yet respondents consistently confuse Norwood's substantive holding -- that the State of Mississippi was not entitled to give significant support to discriminatory private schools -- with the question of standing. Respondents may be correct that the Court's substantive holding in Norwood did not rest "on any requirement of a showing of a 'precise causal relationship' between the state aid and public school desegregation" (Resp. Br. 16). The question of standing, however, hinges precisely on whether the alleged injury, if any, "fairly can be traced to the challenged action of the defendant." Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41 (1976). Respondents' extended discussion of the merits of Norwood (Resp. Br. 14-18, 20-21, 23) -- the only issue with which that opinion deals -- is simply irrelevant to the issue here. On the issue of standing, Norwood provides little, if any, support for respondents' argument. Norwood arose in an entirely different context from this case. The action in Norwood was but one part of a larger litigation brought by public school children to compel state and local school authorities to put an end to the de jure segregation of their schools. The State's provision of textbooks to these so-called "private" schools in Norwood was in essence a means for perpetuating the prior segregated public school system. As this Court explained in Gilmore v. City of Montgomery, 417 U.S. 556, 570-571 n.10 (1974) (emphasis added), "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, respondents' lawsuit is unrelated to any specific school desegregation litigation. /1/ The federal petitioners are strangers to any school desegregation cases that might affect respondents, and it is hard to see how the guidelines and procedures they employ on a nationwide basis to enforce the provisions of the tax code could be considered "directly related" to any school desegregation decree. /2/ Moreover, as respondents concede (Resp. Br. 13), there is no dispute here about the underlying substantive law. Under Internal Revenue Service guidelines and procedures, to qualify for tax-exempt status a private school must both publicly announce and operate in accordance with a racially nondiscriminatory policy. Rev. Proc. 75-50, 1975-2 Cum. Bull. 587 (Interv. Pet. App. 1e-12e). /3/ Respondents' complaint is simply that "some schools 'are slipping through the Commissioner's net of enforcement'" (Interv. Pet. App. 22b n.27). Presumably, the same can be said of every penal and regulatory statute. Any tax exempt schools that racially discriminate today do so in violation of IRS rules. Even if a litigant in a particular case would have standing to challenge an unconstitutional law or program, as in Norwood, it does not follow that he would have standing to challenge the enforcement procedures under a concededly appropriate law or program. In any event, we think that respondents read too much into Norwood when, despite the opinion's total silence on the issue of standing, they use it to support a sweeping new theory of standing which, as the court of appeals recognized (Interv. Pet. App. 16b), points in an "opposite direction()" from Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976), and other decisions of this Court expressly addressing the pertinent principles of standing. Moreover, neither the court of appeals in its opinion nor respondents in their brief even purport to construct a coherent doctrine of standing from their reading of Norwood. They suggest no limiting principle that would distinguish their claim to standing in this case from that of any other citizens who seek to challenge the adequacy of governmental efforts to enforce laws important to them. Respondents' attempts to distinguish Eastern Kentucky (Resp. Br. 22-23) and Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) (Resp. Br. 23-24) consist of no more than a blurring of the two distinct claims of injury they made in the district court. As we showed in our initial brief (Fed. Pet. Br. 24-28), respondents' first allegation of injury -- violation of their asserted right to have the federal government "steer clear" of aid to discriminatory schools /4/ -- establishes no injury in fact. "(A)ssertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning." Valley Forge College, 454 U.S. at 483. There is accordingly no relevance in respondents' claim that their grievance on this score is "a direct consequence of the unconstitutional conduct of the federal petitioners and would be redressed by grant of the relief sought" (see Resp. Br. 22-23) -- as could equally have been said of the claim in Valley Forge College. Respondents further argue that their second allegation of injury -- interference with their right to attend desegregated public schools -- establishes, unlike the "generalized grievance()" in Valley Forge College, an injury to their "particularized, enforceable right to equal educational opportunity for their children" (Resp. Br. 24 & n.16). /5/ But this second asserted injury (if it exists at all) is neither caused by the actions of the federal petitioners nor susceptible to redress against them in court. As we showed in our brief (Fed. Pet. Br. 32-35), respondents' second claim of injury is far more "speculative" even than that rejected by this Court in Eastern Kentucky. The alleged injury to respondents is twice removed from the government conduct they seek to challenge. The racial composition of the public schools in respondents' districts is affected only insofar as thousands of white parents make individual decisions on where to send their children to school. These decisions may or may not be significantly affected by whatever changes in policy the affected private schools may (or may not, as Eastern Kentucky points out) make in response to changes in IRS regulations. /6/ In short, neither allegation of injury satisfies both of the elements required as an "irreducible minimum" by Article III (Valley Forge College, 454 U.S. at 472): (1) the plaintiff must allege "distinct and palpable injury to himself" (Warth v. Seldin, 422 U.S. 490, 501 (1975)), and (2) the injury must be fairly traceable to the alleged illegal conduct of the defendant and likely to be redressed by a favorable decision (Valley Forge College, 454 U.S. at 472). For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General FEBRUARY 1984 /1/ Respondents point out that one respondent is within a certified plaintiff class in the Boston school desegregation litigation and that other respondents "live in districts in which schools are desegregating pursuant to court order" (Resp. Br. 27-28). By no stretch of the imaginization, however, could it be thought that this action, which seeks nationwide relief in the form of changes in IRS regulations, is "directly related" to those desegregation suits. /2/ Respondents erroneously assert (Resp. Br. 26 (emphasis in original)) that "the government concedes that some black schoolchildren have standing to bring the instant action, but seeks to limit the class of those who have standing to plaintiffs who were parties to an earlier school desegregation order." On the contrary, we doubt that a challenge to nationwide IRS enforcement guidelines and procedures could ever be so "directly related" to a public school desegregation suit (Gilmore v. City of Montgomery, 417 U.S. at 570-571 n.10, explaining the basis for standing in Norwood) as to serve as a basis for standing. /3/ As set forth in the cited pages (Interv. Pet. App. 1e-12e), Rev. Proc. 75-50 prohibits, in some detail, racial discrimination with respect to student admissions, faculty, school programs, and tuition and scholarship practices. /4/ It should not be overlooked that respondents seek standing in this case to obtain relief directed to the tax exempt status not of discriminatory schools only, but also of any other schools (whatever their policies) that may be used by "white children avoiding attendance in desegregating public school systems" (J.A. 40). See Fed. Pet. Br. 20-21 & n.20. /5/ But see Fed. Pet. Br. 31-32. /6/ Indeed, it is improbable that the racial composition of public schools would be substantially affected by a private school's decision to implement a bona fide policy of nondiscrimination, or even of affirmative outreach.