DONALD T. REGAN, SECRETARY OF THE TREASURY, ET AL., PETITIONERS V.
INEZ WRIGHT, ET AL.

   No. 81-970

   In the Supreme Court of the United States

   October Term, 1981

   The Solicitor General, on behalf of the Secretary of the Treasury,
and the Commissioner of Internal Revenue, petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the District of Columbia Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Constitutional provisions, statutes and regulations involved
   Statement:
      A. Background
      B. The proceedings in this case
   Reasons for granting the petition
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the district court (Interv. Pet. App. A 1a-15a) /1/
is reported at 480 F. Supp. 790.  The opinion of the court of appeals
(Interv. Pet. App. B 1b-58b) is reported at 656 F.2d 820.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 18, 1981.
The orders of the court of appeals denying the petition for rehearing
(Interv. Pet. App. C) with suggestion for rehearing en banc (Interv.
Pet. App. D) were entered on August 26, 1981.  A petition for a writ
of certiorari (No. 81-757) was filed on behalf of the intervenor W.
Wayne Allen on October 20, 1981.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

     CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS INVOLVED

   The Fifth and Fourteenth Amendments to the United States
Constitution, Section 501(a) and (c)(3) of the Internal Revenue Code
of 1954 (26 U.S.C.), Rev. Stat. 1977 (1878 ed.) (42 U.S.C. 1981), and
Sections 103 and 615 of the Treasury, Postal Service, and General
Government Appropriations Act of 1980, Pub. L. No. 96-74, 93 Stat.
562, 577, are set forth at Interv. Pet. 2-4.  The relevant provisions
of Article III of the Constitution and Section 170(a) and (c)(2) of
the Internal Revenue Code of 1954 (26 U.S.C.) are set forth in
Appendix A, infra.

   Revenue Procedure 75-50, 1975-2 Cum. Bull. 587, the Proposed
Revenue Procedure, and the Modified Proposed Revenue Procedure are set
forth respectively at Interv. Pet. App. E 1e-12e, F 1f-13f, and G
1g-14g.

                          QUESTION PRESENTED

   Whether federal courts may entertain equity suits against the
Secretary of the Treasury brought by persons seeking to have the
Treasury revise the rules under which it determines the eligibility of
private schools for tax-exempt status, and to deny or revoke
tax-exempt status of private schools claimed to have insufficient
minority enrollment, where the plaintiffs allege no actual injury to
themselves either by any private school or by the Treasury.

                               STATEMENT

                             A. Background

   Since 1970, the Internal Revenue Service has uniformly taken the
position that a private school will not qualify as a tax-exempt
organization under Section 501(c)(3) of the Internal Revenue Code of
1954, or as an eligible donee of charitable contributions deductible
under Section 170(c)(2) of the Code, unless it establishes that its
admissions and educational policies are operated on a racially
non-discriminatory basis.  Rev. Proc. 75-50, 1975-2 Cum. Bull. 587
(Interv. Pet. App. E 1e-12e) sets forth the currently effective
guidelines by which the Internal Revenue Service determines whether
private schools seeking to acquire or maintain tax-exempt status have
racially nondiscriminatory policies as to students.  /2/ The Revenue
Procedure accordingly provides (Sec. 2.02) that "(a) school must show
affirmatively both that it has adopted a racially non-discriminatory
policy as to students that is made known to the general public and
that since the adoption of that policy it has operated in a bona fide
manner in accordance therewith." The Revenue Procedure thereafter
enumerates requirements that must be met by each school seeking to
establish that it has adopted and is operating in accordance with a
nondiscriminatory policy.  Under the Revenue Procedure, a school
seeking to acquire or retain tax-exempt status and eligibility for
tax-deductible contributions must state in its charter documents, and
catalogues that it has adopted a non-discriminatory policy;  publicize
that policy at least once annually so as to bring it effectively to
the attention of all racial segments of the community;  and maintain
records documenting, inter alia, the racial composition of its
students, faculty, and administrative staff.  Officials of a school
claiming the benefits of tax exemption are required to certify to the
Internal Revenue Service each year, under penalties of perjury, that
the school has complied with the guidelines (Interv. Pet. App. E
7e-8e).  /3/

   On August 22, 1978, the Internal Revenue Service published a
proposed revenue procedure (see Interv. Pet. App. F 1f-13f) seeking to
amplify its policy with respect to schools that had been held by a
court or agency to be racially discriminatory, and schools that had an
insignificant number of minority students and were formed or
substantially expanded at or about the time of desegregation of the
public schools in the community.  After lengthy administrative
hearings and the receipt of a substantial number of adverse written
comments, the Internal Revenue Service issued a revised proposal on
February 9, 1979 (Interv. Pet. App. G 1g-14g).

   The Internal Revenue Service's proposals led to the enactment of
two related provisions that Congress included in the Treasury, Postal
Service, and General Government Appropriations Act of 1980, Pub. L.
No. 96-74, 93 Stat. 559.  In Section 615 (93 Stat. 577), known as the
Dornan Amendment, Congress stipulated that none of the funds made
available by the Act be used to carry out the proposed revenue
procedures of 1978 and 1979.  In Section 103 (93 Stat. 562), of the
same Act, known as the Ashbrook Amendment, Congress provided that none
of the funds made available by the Act be used "to formulate or carry
out any rule, policy, procedure, guideline, regulation, standard, or
measure which would cause the loss of tax-exempt status to private,
religious or church-operated schools under Section 501(c)(3) of the
Internal Revenue Code of 1954 unless in effect prior to August 22,
1978." The district court observed that "(t)he effect of (this
congressional) action is to retain in effect, at least until
September, 1980, the presently effective Rev. Proc. 75-50 * * *"
(Interv. Pet. App. A 14a).

                    B. The Proceedings in this Case

   1. Respondents are the parents of 25 black school children who
attend public school in seven states, and claim to represent a
nationwide class of "several million individuals" (Interv. Pet. App. A
1a).  They brought this action in the United States District Court for
the District of Columbia against the Secretary of the Treasury and the
Commissioner of Internal Revenue, alleging that these federal
officials "have fostered and encouraged the development, operation and
expansion of * * * racially segregated private schools by granting
them, or the organizations that operate them, exemptions from federal
taxation * * *" (A. 10).  /4/

   Respondents alleged that the actions of the federal officials
injured them and their class, and claimed injury in the following two
respects, "First, the exemptions constitute tangible financial aid and
other assistance to racially segregated education.  Second, the
exemptions foster and encourage the development of institutions
offering racially segregated educational opportunities for white
children avoiding attendance in desegregating public school districts,
and thereby also interfere with the efforts of federal courts, HEW and
local school authorities to desegregate racially dual school systems"
(A. 11).

   Although their complaint asserted that "thousands of newly created
and many existing private schools have provided racially segregated
alternative educational opportunities for white children avoiding
attendance in desegregating school systems" (A. 9), is identified only
19 private schools that respondents claim to be "racially segregated."
/5/ Respondents sought declaratory and injunctive relief requiring the
federal officials to deny all applications for tax-exempt status for,
and to revoke tax exemptions held by all private schools "which have
insubstantial or nonexistent minority enrollments, which are located
in or serve desegregating public school districts" (A. 11) and which
either (A. 37) --

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

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

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

   Respondents further requested the court to grant injunctive relief
in the nature of mandamus requiring the federal officials to revise
Rev. Proc. 75-50 and to substitute the criteria that they urge as the
governing standard for granting tax exempt status to private schools
(A. 37).

   2. The district court dismissed respondents' suit on three separate
grounds.  First, it concluded that respondents had no standing to
bring the action because:  (a) they had not asserted a distinct,
palpable, and concrete injury;  (b) they had not shown that their
alleged injury was attributable to the federal officials' action;  (c)
there was no certainty that the relief requested would remove the
injury;  and (d) there was not a sufficient degree of concrete
adverseness between respondents and the federal officials (Interv.
Pet. App. A 4a-11a).

   In so ruling, the court relied principally on this Court's decision
in Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26
(1976).  The court noted that respondents had not alleged that any of
the private schools cited in the complaint was actually discriminating
in violation of the Constitution or of federal law, or that any of
them or their children had suffered any discriminatory action or
exclusion.  It questioned whether enforcement of respondents' proposed
guidelines would ultimately cause any of these schools to lose
tax-exempt status that it would have otherwise retained.  Furthermore,
even though the implementation of respondents' guidelines might
ultimately serve to deprive some schools of their exempt status, the
court found that respondents had not shown that the loss of exemptions
would produce a net change in the desegregation of any particular
school district.  The court accordingly concluded that respondents had
failed to show any nexus between the Internal Revenue Service's
position and the injury allegedly suffered.  Rather, the court
observed that it appeared probable that any schools forced to choose
would elect to forgo their exempt status rather than terminate any
discriminatory practices (Interv. Pet. App. A 9a-10a).

   Second, the district court ruled that respondent's action was
"barred by the doctrine of nonreviewability" because it "would require
this Court to undertake detailed or continuing review of a generalized
IRS enforcement program, or to review complex issues of tax
enforcement policy and of agency resource allocation" (Interv. Pet.
App. A 11a).  As the district court saw the matter, "Such action would
be tantamount to this Court becoming a 'shadow Commissioner of
Internal Revenue' to run the administration of tax assessments to
private schools in the United States" (id. at 12a).

   Finally, the district court concluded that the enactment in 1979 of
the Ashbrook and Dornan Amendments to the General Appropriations Act
"are the strongest possible expressions of the Congressional intent
that Section 501(c)(3) of the Internal Revenue Code is not susceptible
of the construction which (respondents) would place upon it in this
case" (id. at 14a-15a).  While the court acknowledged that the
Ashbrook and Dornan Amendments apparently allow a federal court to
fashion a remedy in this area, it concluded that it was "not the
business of a federal court to explicitly thwart the will of Congress
or to otherwise fail to carry it out (id. at 15a).

   3. A divided panel of the court of appeals reversed (Interv. Pet.
App. B 1b-58b).  It held that respondents had standing to sue and
remanded the case for further proceedings.  In so ruling, the court
acknowledged that this Court's decision in Simon v. Eastern Ky.
Welfare Rights Organization, supra, 26, leaves "the door barely ajar
for third party challenges" (Interv. Pet. App. B 16b) of the tax
treatment of others.  It also recognized that its own previous
decisions had dismissed for lack of standing suits brought by persons
who sought to litigate the tax status of other parties.  /6/

   But the court concluded that other precedent of this Court points
in the opposite direction and indicates "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" (Interv. Pet. App. B 15b-16b).  See Coit v. Green, 404
U.S. 997, aff'g Green v. Connally, 330 F. Supp. 1150 (D.D.C. ((1971));
 Norwood v. Harrison, 413 U.S. 455 (1973);  Gilmore v. City of
Montgomery, 417 U.S. 556 (1974).  In the court's view, those cases
"recognized the right of black citizens to insist that their
government 'steer clear' of aiding schools in their communities that
practice race discrimination" (Interv. Pet. App. B 24b-25b).  The
court therefore ruled that because of "the centrality of that right in
our contemporary (post-Civil War) constitutional order, (it was)
unable to conclude that Eastern Kentucky speaks to the issue before
us" (ibid.)

   In addition, the court found no impediment to the action in the
other grounds of the district court's decision dismissing the suit.
It concluded that the doctrine of nonreviewability did not preclude
adjudication of respondents' claims because they derived ultimately
from constitutional concerns that courts, as opposed to
administrators, were better equipped to address (Interv. Pet. App.
32b-35b).  Nor did it view the Ashbrook and Dornan amendments as
prohibitions upon fashioning a remedy.  The amendments, as it
construed them, were merely interim stop orders on agency initiatives
and did not purport to control judicial dispositions (id. at B
25b-30b).

   In dissent, Judge Tamm deemed Eastern Kentucky controlling.
Finding that respondents had failed to allege a distinct and palpable
injury to themselves, or a sufficient nexus between the Internal
Revenue Service's actions and whatever injury they claimed to have
suffered, Judge Tamm would have denied them standing to maintain their
suit.  In his view, the majority's opinion reflected an impermissible
shift in focus from the right of respondents to make their claims to
the rights they wished to assert.  The majority, he concluded, had not
only expanded significantly the law of standing, but had also
overstepped the constitutional limits of its jurisprudential power
(Interv. Pet. App. B 38b-58b).  by Congress for the adjudication of
tax disputes.  This Court should grant certiorari to dispel the
uncertainty in the law of standing created by the decision below.

   1. a. In Eastern Kentucky, as here, the plaintiffs sued to contest
the Treasury's administration of Sections 501(c)(3) and 170 (c)(2) of
the Internal Revenue Code of 1954, not as it affected their own taxes
but as it affected the tax treatment of private institutions not
before the court, viz., hospitals that allegedly had denied free
medical care to the indigent plaintiffs.  The plaintiffs in that case
likewise alleged that the Secretary of the Treasury and the
Commissioner of Internal Revenue had improperly conferred tax-exempt
status to institutions that were not entitled to them under the
Constitution and the tax laws, and thereby "encouraged" hospitals to
deny services to indigents.

   This Court held that the plaintiffs in that virtually identical
posture lacked standing to have their claims adjudicated in a federal
court.  As the Court reaffirmed, "the 'case or controversy' limitation
of Art. III still requires that a federal court act only to redress
injury that fairly can be traced to the challenged action of the
defendant, and not injury that results from the independent action of
some third party not before the court" (426 U.S. at 41-42).  There, it
was "purely speculative whether the denials of service specified in
the complaint fairly can be traced to (the Treasury's) 'encouragement"
or instead result from the decisions made by the hospitals without
regard to the tax implications" (id. at 42-43.) Moreover, "(i)t (was)
equally speculative whether the desired exercise of the court's
remedial powers in (that) suit would result in the availability to
(the plaintiffs) of such services" (ibid.).  In these circumstances,
the Court held that the plaintiffs lacked standing because they had
not shown that "the asserted injury was the consequence of the
defendants' actions;  or that prospective relief will remove the
harm." Warth v. Seldin, 422 U.S. 490, 505 (1975).

                   REASONS FOR GRANTING THE PETITION

   In holding that respondents had standing to bring this suit in
which they seek to compel the Department of the Treasury to revise its
rules governing the eligibility of private schools for tax-exempt
status and to deny such status to schools having what they deem to be
insufficient minority enrollment, the decision below refused to follow
the squarely applicable precedent of Simon v. Eastern Ky. Welfare
Rights Organization, 426 U.S. 26 (1976), in which this Court
unanimously reversed the same court of appeals that decided the
instant case.  The expansive view of standing adopted by the court of
appeals seriously erodes the previously settled "case or controversy"
limitation of the Article III jurisdiction of the federal courts, and
once again threatens the orderly administration of the revenue laws
and the system established

   Eastern Kentucky governs this case.  Indeed, unlike the plaintiffs
in Eastern Kentucky who alleged that they were denied medical
treatment by particular hospitals, respondents' generalized and
attenuated allegations concerning the practices of unidentified
private schools do not even demonstrate injury in fact.  As the
district court pointed out, "there is no allegation in the record
before the Court that the 'target schools' are actually discriminating
in violation of the Constitution or federal law" (Interv. Pet. App. A
5a-6a).  Nor do respondents allege that a judgment in their favor
would redress any injury that fairly can be attributed to the
challenged action of the Treasury defendants.  In this respect, the
court of appeals acknowledged that "(respondents) do not dispute that
it is 'speculative,' within the Eastern Kentucky frame, whether any
private school would welcome blacks in order to retain tax exemption
or would relinquish exemption to retain current practices.  They claim
indifference as to the court private schools would take" (Interv. Pet.
App. B 18b).  While respondents are free to profess indifference to
the response of the private schools whose policies they decry, "(a)
federal court, properly cognizant of the Art. III limitation upon its
jurisdiction, must require more than respondents have shown before
proceeding to the merits." Simon v. Eastern Ky. Welfare Rights
Organization, supra, 426 U.S. at 46.

   b. Although the court of appeals acknowledged that Eastern Kentucky
"suggests that litigation concerning tax liability is a matter between
taxpayer and IRS, with the door barely ajar for third party
challenges" (Interv. Pet. App. B 16b), it concluded "that Eastern
Kentucky is not the line appropriately followed in the matter before
us" (id. at 18b).  In the court's view, Eastern Kentucky was
distinguishable because respondents do not assert "a claim for relief
against private actors" (ibid.) but rather against the government.

   But the plaintiffs in Eastern Kentucky did not assert a claim
against the private hospitals.  Like respondents, they sued the
Secretary of the Treasury to compel a change in the rules governing
the tax exemption accorded to private hospitals that were claimed to
have injured the plaintiffs.  Thus, Eastern Kentucky is squarely in
point because both suits sought a change in governmental conduct.  If
there is any difference between the two cases, it is, as we have
pointed out (supra, pages 6, 8, 13), that respondents have not even
asserted any injury at the hands of the Treasury or any private school
-- a fact that the court of appeals conceded in stating that
respondents "do not allege that any particular school turns away
students on the basis of race" (Interv. Pet. App. B 22b n.27).  Thus,
respondents' suit is even further removed from meeting the
prerequisites of standing than the plaintiffs' claim dismissed by this
Court in Eastern Kentucky.

   There is, moreover, no basis for the court of appeals' conclusion
that "the standing analysis should remain unaffected so long as
plaintiffs have a right to demand that their government 'steer clear'
of aiding discrimination in local educational facilities and contend,
as plaintiffs do here, that current government (IRS) practice does not
meet the "steer clear' standard" (Interv. Pet. App. B 22b n.27).
Respondents' asserted right to be free of government aid to racial
discrimination is an undifferentiated right common to all members of
the public that will not support standing to sue Treasury officials in
an Article III court.  See United States v. Richardson, 418 U.S. 166,
176-180 (1974).  The fact that respondents may have an interest in a
matter that they have sought to identify as a public issue, and that
they may share certain attributes common to persons who may have
suffered discrimination at the hands of private schools, is an
insufficient ground upon which to conclude that they have been injured
in fact by such discrimination or that the Secretary's allegedly
illegal conduct has actually caused such discrimination.  Warth v.
Seldin, supra, 422 U.S. at 502.  In short, respondents are
"individuals who seek to do no more than vindicate their own value
preference through the judicial process." Sierra Club v. Morton, 405
U.S. 727, 740 (1972).  See also O'Shea v. Littleton, 414 U.S. 488,
493-496 (1974);  Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-168,
171, 178 (1972).

   c. In refusing to follow Eastern Kentucky, the court of appeals
declined to "search for a grand solution that will unclutter this area
of the law and lead to secure, even handed adjudication" (Interv. Pet.
App. B 16b).  Rather, it "select(ed) from two divergent lines of
Supreme Court decision(s) the one (it) believe(d) best fit() the case
before (it)" and concluded that there was precedent to support the
proposition 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" (ibid.).

   But the law of standing does not turn upon the racial
characteristics of the plaintiff or the substantive issues raised by
the complaint.  "Unlike other associated doctrines, for example, that
which restrains federal courts from deciding political questions,
standing 'focuses on the party seeking to get his complaint before a
federal court and not on the issues he wishes to have adjudicated.'"
Simon v. Eastern Ky. Welfare Rights Organization, supra, 426 U.S. at
37-38, quoting from Flast v. Cohen, 392 U.S. 83, 99 (1968).  See also
Warth v. Seldin, supra, 422 U.S. at 517-518;  Schlesinger v.
Reservists to Stop the War, 418 U.S. 208, 225-227 (1974).  Hence,
respondents are subject to precisely the same requirement as any other
plaintiff and therefore must allege "'such a personal stake in the
outcome of the controversy as to warrant (their) invocation of
federal-court jurisdiction and to justify exercise of the court's
remedial powers on (their) behalf'".  Warth v. Seldin, supra, 422 U.S.
at 498-499, quoting from Baker v. Carr, 369 U.S. 186, 204 (1962).

   There are, moreover, no "divergent lines of Supreme Court decision"
(Interv. Pet. App. B 16b), as the court of appeals mistakenly
believed, that "point() in opposite directions" (id. at 15b-16b), or
that cast doubt upon the standing analysis of Eastern Kentucky.  In
proposing its novel hypothesis that black citizens can more easily
invoke federal-court jurisdiction to remedy alleged governmental aid
to private discrimination without demonstrating injury and a nexus
between injury and the defendant's conduct, the decision below relied
on Green v. Kennedy, 309 F. Supp. 1127 (1970), continued, 330 F. Supp.
1150 (D.D.C.), aff'd, 404 U.S. 997 (1971);  Norwood v. Harrison, 413
U.S. 455 (1973);  and Gilmore v. City of Montgomery, 417 U.S. 556
(1974).

   But none of those cases warrant, much less dictate, the conclusion
that respondents have standing to bring this suit.  Neither the
Court's summary affirmance in Green nor its opinion in Norwood v.
Harrison addressed the standing of the plaintiffs in those cases.
Indeed, unlike this case where the respondents' quarrel with the
Internal Revenue Service is over the effectiveness of its enforcement
procedures rather than its substantive position, /7/ the Green
litigation was initiated to obtain a ruling that racially
discriminatory schools were not entitled to tax exemption under
Section 501(c)(3).  There, the plaintiffs identified in their
complaint specific private schools in their communities "from which
Negro students (were) excluded on the basis of color" (Interv. Pet.
App. B 4b).  Moreover, because the Service adopted the complainants'
position in the midst of the litigation, "the Court's affirmance in
Green lacks the precedential weight of a case involving a truly
adversary controversy." Bob Jones University v. Simon, 416 U.S. 725,
740 n.11 (1974).  /8/

   Norwood v. Harrison, supra, is similarly inapposite on the question
of standing.  There, the Court struck down a state program under which
students borrowed textbooks without regard to whether the students
attended private schools with racially discriminatory policies.  As
the Court subsequently explained in Gilmore v. City of Montgomery, 417
U.S. 556, 570-571 n.10 (1974), "(t)he plaintiffs in Norwood were
parties to a school desegregation order and the relief they sought was
directly related to the concrete injury they suffered."

   The same observation is equally applicable to Gilmore, which was
related to a prior class action to desegregate public parks and
recreational facilities.  Indeed, contrary to the decision below, the
Court's discussion of standing in Gilmore fully supports our
submission that all plaintiffs must meet the traditional requisites of
standing to invoke federal-court jurisdiction.  As the Court stated,
"(w)ithout a properly developed record, it is not clear that every
non-exclusive 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 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 (ibid.)."
See also Warth v. Seldin, supra.

   2. a. The broad authority that Congress has given the Secretary of
the Treasury and the Commissioner of Internal Revenue over the
administration of the tax laws shows that it did not intend the courts
to entertain suits of this kind.  To adjudicate respondents'
generalized claims, a broad-scale inquiry into the enforcement
practices of the Internal Revenue Service, as well as into the racial
policies of an indefinite number of private schools, would be
required.  /9/ The role respondents would assume and have the court
assume, "as virtually continuing monitors of the wisdom and soundness
of Executive action," Laird v. Tatum, 408 U.S. 1, 15 (1972), belongs
to Congress in the exercise of its oversight function over the
operation, administration, and effects of the internal revenue system
(see Sections 8021 through 8023 of the Internal Revenue Code of 1954)
and to the President, who, along with the Treasury officials, is
required to "take Care that the Laws be faithfully executed." United
States Constitution, Article II, Section 3;  26 U.S.C. 7801(a),
7805(a).  Absent an assertion of concrete and remediable injury
directly attributable to unlawful government action, the judiciary
should not assume the "amorphous (task of) general supervision of the
oprations of government * * * ." United States v. Richardson, supra,
418 U.S. at 192 (Powell, J., concurring);  Schlesinger v. Reservists
to Stop the War, 418 U.S. 208, 217-223 (1974).

   Indeed, the structure for the adjudication of tax disputes shows
that Congress established precisely defined channels for the conduct
of the litigation that do not permit third parties such as respondents
to challenge the tax treatment of others.  The federal district courts
and the Court of Claims have jurisdiction over actions by the affected
taxpayer for refunds of taxes paid.  26 U.S.C. 6532, 7422;  28 U.S.C.
1346, 1491.  And the Tax Court has been granted jurisdiction to review
deficiency determinations with respect to income, estate, or gift tax,
at the behest of the affected taxpayer.  26 U.S.C. 6212, 6213.  In
order to confine tax litigation to these prescribed avenues of review,
Congress has generally prohibited "any person, whether or not such
person is the person against whom such tax was assessed," from
maintaining a "suit for the purpose of restraining the assessment or
collection of any tax" (26 U.S.C. 7421(a), the Anti-Injunction Act)
and has prohibited declaratory relief in all actions "with respect to
Federal taxes" (28 U.S.C. 2201).  This Court has repeatedly required
that those and other limitations on the channels of tax litigation be
strictly enforced so as to accomplish their intended purpose.
Louisiana v. McAdoo, 234 U.S. 627 (1914);  Bob Jones University v.
Simon, 416 U.S. 725 (1974);  Enochs v. Williams Packing Co., 370 U.S.
1 (1962);  Flora v. United States, 362 U.S. 145 (1960);  Angelus
Milling Co. v. Commissioner, 325 U.S. 293 (1945);  United States v.
Felt & Tarrant Co., 283 U.S. 269 (1931).  Moreover, Congress has
recently confirmed that the prohibitions against equity suits against
the Treasury in tax matters remain fully operative in suits for review
of agency action.  S. Rep. No. 94-996, 94th Cong., 2d Sess. (1976);
H.R. Rep. No. 94-1656, 94th Cong., 2d Sess. 12-13 (1976).  In sum, the
structure of our tax system confirms the correctness of Justice
Stewart's observation that he "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
tax liability of someone else." Simon v. Eastern Ky. Welfare Rights
Organization, supra, 426 U.S. at 46 (Stewart, J., concurring).

   b. Of course, we do not suggest that policies of the Internal
Revenue Service should be immune from public inquiry and examination.
The broad tax policy questions raised by respondents' suit are
properly a matter for public debate.  However, the appropriate forum
for such a debate concerning the correctness of Treasury policy is in
the Congress pursuant to the exercise of its oversight of the
Department of the Treasury and not in the courts.  "Any other
conclusion would mean that the Founding Fathers intended to set up
something in the nature of an Athenian democracy or a New England town
meeting to oversee the conduct of the National Government by means of
lawsuits in federal courts." United States v. Richardson, supra, 418
U.S. at 179.

   Indeed, public debate has recently been taking place in Congress
over the Treasury's enforcement policies in the area of tax exemptions
of private schools, thereby confirming our submission that
respondents' suit is not appropriate for judicial resolution.  The
Internal Revenue Service has already sought to supplement its existing
procedures for testing the bona fides of the racial policies of
private schools by proposing to treat as prima facie discriminatory
schools formed in the wake of desegregation decrees or adjudicated in
the past to be discriminatory (Interv. Pet. App. F 1f-13f;  Pet App. G
1g-14g).  Had they been adopted, those proposals apparently would have
gone far toward meeting respondents' objections to the current
procedures.  They provoked, however, a large volume of adverse
testimony before the Internal Revenue Service and Congress.  See Tax
Exempt Status of Private Schools:  Hearings Before the Subcomm. on
Oversight of the House Comm. on Ways and Means, 96th Cong., 1st Sess.
(1979).  In the wake of the hearings, the House Committee on
Appropriations recommended that adoption of the Internal Revenue
Service's proposals be deferred until after the regular taxwriting
committees of Congress had determined that they represented a proper
interpretation of the tax laws.  H.R. Rep. No. 96-248, 96th Cong., 1st
Sess. 14-15 (1979).  By means of the so-called Ashbrook and Dornan
Amendments to the 1980 Treasury Appropriations Act, Congress
prohibited the Treasury, for fiscal year 1980, from expending funds to
carry out any private school procedure, standard, or guidelines more
preclusive than those in effect before August 22, 1978, the date of
issuance of the first of the proposed procedures.  Sections 103 and
615, Treasury, Postal Service, and General Government Appropriations
Act, 1980, Pub. L. No. 96-74, 93 Stat. 562, 576.  /10/

   Congress has continued to exercise its oversight authority in this
area.  After the court of appeals rendered its opinion in this case,
in which it observed that the Ashbrook-Dornan restrictions then in
effect did not purport to control court orders (Interv. Pet. App. B
30b), the House of Representatives added to the 1982 Treasury
Appropriations bill a spending restriction that would specifically
encompass court orders entered after August 22, 1978.  /11/ See 127
Cong. Rec. H5392-H5398 (daily ed. July 30, 1981).  The Senate
Committee on Appropriations subsequently reported out a spending
restriction in identical form.  Under a joint resolution making
continuing appropriations for the current fiscal year, this provision
became effective as of October 1, 1981, at least through November 20,
1981.  Section 101(a)(3), H.R.J. Res. 325, Pub. L. No. 97-51, 95 Stat.
958, signed Oct. 1, 1981;  see 127 Cong. Rec. H6698-H6699, H6702
(daily ed. Sept. 30, 1981).  /12/ These actions by Congress suggest
that it is the appropriate forum for the resolution of respondents'
quarrel with the Treasury and reinforce the wisdom of "the basic
principle that to invoke judicial power the claimant must have 'a
personal stake in the outcome,' * * * , or a 'particular, concrete
injury' or 'a direct injury,' * * * in short, something more than
'generalized grievances' * * * " (citations omitted) United States v.
Richardson, supra, 418 U.S. at 179-180.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   JOHN F. MURRAY

      Acting Assistant Attorney General

   STUART A. SMITH

      Assistant to the Solicitor General

   MICHAEL L. PAUP

   ERNEST J. BROWN

   ROBERT S. POMERANCE

      Attorneys

   NOVEMBER 1981

   /1/ "Interv. Pet" refers to the petition for a writ of certiorari
(No. 81-757) filed by the intervenor W. Wayne Allen, Chairman of the
Board of Trustees of the Briarcrest School System in Memphis,
Tennessee.

   /2/ In 1976 and 1977, the Internal Revenue Service also issued more
detailed guidelines for the use of revenue agents performing field
audits of private schools.  See 4 Administration, Internal Revenue
Manual (CCH) Paragraphs 341.11-341.13, at 22,457-9 -- 22,460.

   /3/ See Rev. Rul. 71-447, 1971-2 Cum. Bull. 230;  Rev. Rul. 75-231,
1975-1 Cum. Bull. 158.  See also Prince Edward School Foundation v.
Commissioner, 478 F. Supp. 107 (D.D.C. 1979), aff'd by unpublished
order, No. 79-1622 (D.C. Cir. June 30, 1980), cert. denied, No. 80-484
(Feb. 23, 1981) (non-religious private school denied tax-exempt status
for failure to make requisite showing that it maintained a racially
non-discriminatory admissions policy where no black child had been
admitted for a period of almost 20 years;  directors' belief in the
value of segregated education does not excuse failure to make
requisite showing of nondiscriminatory policy).

   The Internal Revenue Service's position is before the Court in two
cases presenting the question whether nonprofit corporations operating
private schools that, on the basis of religious doctrine, maintain
racially discriminatory admissions policies and other racially
discriminatory practices qualify as tax-exempt organizations under
Section 501(c)(3) of the Code.  See Goldsboro Christian Schools, Inc.
v. United States, No. 81-1, and Bob Jones University v. United States,
cert. granted, No. 81-3 (Oct. 13, 1981).

   /4/ "A." refers to the appendix filed in the court of appeals.

   /5/ Respondents apparently use the term "racially segregated" to
signify only that there are few or no black students in attendance at
a particular school, and not to signify that the absence of blacks is
attributable to racial exclusion practices.  At a hearing in the
district court, counsel for respondents conceded that he did not know
whether any of the black children who are parties to this action would
be denied admission by any private school on the basis of race (Tr. of
Motion of Defendants to Dismiss, Nov. 20, 1979, at 66-67).

   The complaint identifies a number of private schools that
respondents alleged to fit this description:  Harding Academy,
Briarcrest Baptist School System and the Southern Baptist Schools of
Whitehaven, Inc., Memphis, Tennessee;  Natchitoches Academy,
Natchitoches Parish, Louisiana;  Delta Christian Academy and Tallulah
Academy, Madison Parish, Louisiana;  River Oaks School, Monroe,
Louisiana;  Holly Hill Academy and Bowman Academy, Orangeburg, South
Carolina;  Sea Pines Academy, Beaufort County, South Carolina;  Prince
Edward Academy, Prince Edward County, Virginia;  Montgomery Academy
and St. James Parish School, Montgomery, Alabama;  Camelot Parochial
School, Cairo, Illinois;  Hyde Park Academy, South Boston Heights
Academy and Parkway Academy, Boston, Massachusetts.  These schools are
said to serve the desegregating public school districts where the
minor respondents attend school (A. 20-34).

   /6/ See American Society of Travel Agents V. Blumenthal, 566 F.2d
145 (D.C. Cir. 1977), cert. denied, 435 U.S. 947 (1978);  Tax Analysts
& Advocates v. Blumenthal, 566 F.2d 130 (D.C. Cir. 1977), cert.
denied, 434 U.S. 1086 (1978).  See also American Jewish Congress v.
Vance, 575 F.2d 939 (D.C. Cir. 1978).

   /7/ We are advised that the Internal Revenue Service has revoked
the tax exemption of more than 100 private schools that have failed to
adopt and publicize racially nondiscriminatory policies.

   /8/ The appeal in Green was taken by intervenors appealing from an
order denying their motion to set aside the district court's previous
order.  The intervenors sought to vindicate their asserted right to
freedom of association.  See Motion to Dismiss or Affirm, Coit v.
Green (No. 820, 1970 Term).

   /9/ We are advised by the Internal Revenue Service that there are
approximately 20,000 private schools in the United States currently
recognized as, or claiming to be, tax-exempt under Section 501(c)(3)
of the Internal Revenue Code.

   /10/ The Ashbrook-Dornan Amendment expired on October 1, 1980, the
end of the 1980 fiscal year, but was reinstated for the period
December 16, 1980, through the close of the 1981 fiscal year, by
Sections 101(a)(1) and 101(a)(4), H.R. J. Res. 644 of Dec. 16, 1980,
Pub. L. No. 96-536, 94 Stat. 3166, as amended by Section 401,
Supplemental Appropriations and Rescission Act, 1981, Pub. L. No.
97-12, 95 Stat. 95.

   /11/ The House voted to modify the 1980 Ashbrook amendment by
inserting the phrase "court order" to an amendment to the Treasury,
Postal Service, and General Government Appropriations Bill, 1982 (H.R.
4121, 97th Cong., 1st Sess. (1981)).  The bill, which has yet to pass
both Houses, thus provides in Section 616:

      None of the funds made available pursuant to the provisions of
      this Act shall be used to formulate or carry out any rule,
      policy, procedure, guidelines, regulation, standard, court
      order, or measure which would cause the loss of tax-exempt
      status to private, religious, or church-operated schools under
      Section 501(c)(3) of the Internal Revenue Code of 1954 unless in
      effect prior to August 22, 1978.

   /12/ Those congressional restrictions are prospective in operation
and therefore do not impair the Commissioner's right to use his
existing guidelines and procedures established prior to August 22,
1978 (e.g., Rev. Proc. 75-50, 1975-2 Cum. Bull. 587), to deny tax
benefits to schools not operating under a bona fide nondiscriminatory
policy.  See Bob Jones University V. United States, 639 F.2d 147, 150,
n.3 (4th Cir. 1981), cert. granted, No. 81-3 (Oct. 13, 1981).  See
also Interv. Pet. App. B 26b & n.35, 27b-28b, n.40).

   Appendix Omitted