The opinion of the court was delivered by: HART
This is an action brought by parents of 25 black school children who attend public school in seven states, representing a nationwide class of "several million individuals." Oral Argument, November 20, 1979. Plaintiffs maintain that Internal Revenue Service Regulations, promulgated pursuant to § 501(a) of the Internal Revenue Code, afford unlawful support to discrimination by granting tax exemptions to discriminatory private schools and tax deductions for gifts to such schools. Plaintiffs claim that by recognizing the schools as exempt from federal taxation, the defendants have facilitated the development and operation and the provision of racially segregated educational opportunities for white children avoiding attendance in desegregating public schools. Complaint, P 48. Plaintiffs further allege that the regulations permit schools to receive tax exemptions merely on the basis of adopting and certifying but not implementing a policy of nondiscrimination, in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.Code § 2000e), the Civil Rights Act of 1866 (42 U.S.Code § 1981), and the Fifth and Fourteenth Amendments to the United States Constitution.
Plaintiffs seek declaratory and injunctive relief requiring defendants to deny all applications for tax exempt status for, and to revoke all tax exemptions now held by, all private schools, or the organizations that operate them, which have insubstantial or nonexistent minority enrollments, which are located in or serve desegregating public school districts, and which:
(a) were established or expanded at or about the time the public school districts in which they are located or which they serve began desegregating; Or
(b) have been determined in adversary judicial or administrative proceedings to be racially segregated; Or
(c) cannot demonstrate that they do not provide racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems. Complaint, P 4.
On August 22, 1978, the Internal Revenue Service published in the Federal Register a proposed modification of current procedures (43 Fed.Reg. 37296). In response to public outcry against the proposed modifications, the Internal Revenue Service (hereinafter, "IRS") modified its original proposal and submitted it for public comment on February 9, 1979. On September 29, 1979, the 1980 General Appropriations Act became law. Included in this legislation were amendments (hereinafter, "Ashbrook and Dornan Amendments") expressly forbidding the use of any funds for the "formulation or carrying out" of the February 9, 1979 IRS proposed guidelines. This action effectively retains, at least for one year,Revenue Procedure 75-50. This is the regulation attacked by plaintiffs as "inadequate to insure compliance with the Internal Revenue Code" and therefore "legally insufficient." Complaint, P 2.
For the following reasons, defendant's Motion to Dismiss is granted and the "Wright component"
of the case is dismissed in its entirety with prejudice: (A) the Wright plaintiffs lack standing to assert their claims; (B) the action of the Wright plaintiffs is barred by the doctrine of nonreviewability; (C) recent Congressional action suggests that this Court should not fashion a remedy for the Wright plaintiffs. This Court concludes that each reason is, in and of itself, a sufficient justification for dismissal of plaintiffs' action. Therefore, this Court finds it unnecessary to consider the issues of (1) state action; (2) sovereign immunity; (3) the applicability of Title VII of the 1964 Civil Rights Act; and (4) the applicability of the "indispensable party" Rule 19 of the Federal Rules of Civil Procedure.
THE WRIGHT PLAINTIFFS LACK STANDING TO ASSERT THEIR CLAIMS
Though the recent case law of standing is so dynamic and expansive as to almost defy codification, it appears to the Court that a claimant must Independently satisfy each of four criteria in order to maintain standing to assert its claim. First, the claimant must assert a distinct, palpable, and concrete injury. Second, this injury must be fairly traceable to defendant's actions. Third, there must be a sufficient degree of certainty that the relief requested will remove the injury. Fourth, there must exist a sufficient degree of concrete adverseness between the plaintiff and defendant. In the instant case, the parents of the 25 black public school children must satisfy each criteria to maintain this action. It is the conclusion of this Court that they satisfy none of the criteria.
1. Plaintiffs fail to assert a distinct, palpable, and concrete injury.
In Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974), the Supreme Court noted that, "Concrete injury, whether actual or threatened, is (that) indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution . . ." It is not sufficient that the plaintiff desires "sweeping relief" or that the parties have sharply conflicting views and interests. There must be a distinct, palpable, and concrete injury.
Plaintiffs maintain that the IRS Regulations, as currently structured and administered, present two related injuries. First, the granting of tax exemptions to segregated schools invades plaintiffs' Constitutional right to be free of government aid to and involvement with racial discrimination. Plaintiffs argue that Norwood v. Harrison, 413 U.S. 455, 93 S. Ct. 2804, 37 L. Ed. 2d 723 (1973), Griffin v. State Board of Education, 296 F. Supp. 1178 (E.D.Va.1969), Gilmore v. City of Montgomery, 473 F.2d 832 (5th Cir. 1973), reversed in part on other grounds, 417 U.S. 556, 94 S. Ct. 2416, 41 L. Ed. 2d 304 (1974), and Green v. Connally, supra, support the proposition that Title VII of the Civil Rights Act of 1964 establishes a "right to be free from government aid to segregation." Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss at 22. Second, plaintiffs allege that the IRS Regulations cause injury by subverting plaintiffs' right to Constitutionally mandated public school desegregation by enhancing the degree to which discriminatory private schools can provide a haven for white children avoiding desegregating public schools.
While each of these harms is theoretically plausible, 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. If such an allegation were proven, this Court would have no difficulty ordering an end to the discrimination by the offending school, for the Supreme Court has forcefully held that no private school has any right at law to exclude, or otherwise discriminate against, Negroes on the ground of race. Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976). Thus, plaintiffs are in a dilemma in their attempt to satisfy the distinct, palpable, and concrete injury criteria for standing. 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 ...