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INDEX TO DOCUMENTS RECEIVED FROM Agencies Dated DEC. 7, 1981,
THROUGH JAN. 29, 1982-Continued

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12/31/81 Lawrence Wallace, Acting Solicitor General, requests
and receives extension for filing brief in Bob Jones
through January 10, 1982.

1/4/82 Memo to Schmults, Deputy AG, from John Murray,
Deputy Assistant AG (Tax Division), re: adverse conse-
quences of concession in Bob Jones.

1/4/82 Memo to John Murray, Deputy Assistant AG Tax, from
Donald Gavin, Litigation Counsel, re: effect of conces-
sion in Bob Jones

1/4/82 Commissioner Egger meets with Chapoton, Treasury As-
sistant Secretary (Tax Policy) to discuss Bob Jones
(also attending: Gideon, Glickman and Williams).
1/5/82 Memo to Attorney General from Willian Bradford Reyn-
olds, Assistant AG, Civil Rights, re: Bob Jones (legal
support for change in policy cc: Schmults, Murray and
Olson)

Attachment-41 page legal brief on new policy. Pre-
pared by Charles Cooper, Special Assistant to the AG,
and Carolyn Kuhl (cc: McNamar, Egger, Gideon, Cha-
poton and Wallace)..

1/5/82 Memo to Deputy Secretary McNamar, Treasury, from
Treasury Public Affairs Office, re: press strategy in
releasing new policy (cc: Regan, Egger, Wallison)...
1/5/82 Notes to Ken Starr, Ed Schmults, Bruce Fein, from
Larry Wallace re: Bob Jones and 1976 legislative histo-

ry.
1/7/82 Memo to Dave Gergen, White House, and Tom DeCair,
Justice Public Affairs, from Treasury Public Affairs,
re: release strategy

1/7/82 Letter to William Bradford Reynolds, Assistant AG Civil
Rights, from Kenneth Gideon, IRS Chief Counsel, re:
narrowing one aspect of Bob Jones motion and noting
definitive instructions to reverse IRS position had not
been received

1/8/82 Memo to AG and Deputy AG from Theodore Olson,
Assistant AG Office of Legal Counsel, re: Bob Jones
(critical of Reynolds legal brief and of process); cc:
Reynolds, Starr.......

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1/8/82 Memo to Commissioner Egger from McNamar directing
him to begin the process of granting tax exemptions to
Bob Jones and Goldsboro..

692

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Draft of motion to Supreme Court on Bob Jones confess-
ing error (never filed)..

693

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Treasury Press Release announcing new policy Motion
filed with Supreme Court in Bob Jones and Goldsboro....
IRS motion requesting 60-day extension to answer peti-
tion in Tax Court, re: Mississippi school case
Cabinet meeting with President discussing private
schools.

607

609

618

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1/12/82 President announces intention to introduce legislation
1/13/82 Memo to Schmults from Murray, re: Plaintiff's motion
in Green to vacate stay

620

621

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1/29/82 DOJ "Analysis of Legal Authorities for possible inclu-
sion in a brief," received from Robert McConnell,
Legislative Affairs.

IRS teletype to field offices suspending action on cases
President proposes legislation...

622

623

627

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The purpose of this meeting is to alert you to the legal doctrines that the Tax Division and the Solicitor General currently intend to champion in the above-captioned Supreme Court litigation to determine whether they may be inconsistent with the litigating policies recently elucidated by the Attorney General and yourself. If you believe that there is a discrepancy, you may find it expedient to suggest a legal approach different from the one currently endorsed by the Tax Division. The controlling issue in Bob Jones and Goldsboro is whether Congress intended $170 of the Internal Revenue Code to exclude private schools from eligibility for tax exempt status if they practice racial discrimination. An affirmative answer was given by a three judge district court in 1970 and the U. S. Supreme Court summarily affirmed. The Supreme Court has explained that summary affirmances have little doctrinal value. Briefly stated, the legal rationale advocated by the Tax Division to justify denial of tax exempt status to private schools practicing racial discrimination is as follows:

1.

Congress intended in enacting $170 some sixty years ago
tacitly to bestow on federal courts authority to deny
organizations that fell within the ambit of $170 tax
exempt status if, after surveying contemporary national
social, economic, and other policies, the courts deter-
mined that the applicant organization engaged in a practice
in conflict with any such policy.

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2.

3.

Although $170 was passed when both public and private
racial discrimination was the norm, national policies
have evolved since that time to make racial discrimin-
ation anathama to federal law. Congress, it is contended,
intended to invest the federal judiciary with responsibi-
lity for detecting such a change in national policy and
to alter pro tanto, the ambit of $170 in accord with
contemporary national mores.

The Tax Division claims that the federal judiciary in these
cases properly exercised a roving commission to examine
all potentially eligible tax exempt schools to determine
whether any should be ousted from $170 because practicing
a policy that the judiciary found at odds with an over-
riding national policy. This expansionist view of $170,
if accepted, would reflect an unprecedented entrustment
of policymaking power from Congress to the judiciary.

In support of the Tax Division's views, it should be noted that
they were initially endorsed under the Nixon Administration, that
they are incorporated in outstanding regulations of the Internal
Revenue Service, and that the incumbent Commissioner of Internal
Revenue has not expressly voiced any objection to maintaining
those regulations. Furthermore, to alter the government's
position in Bob Jones and Goldsboro would be viewed by some
as a retreat from the Department's commitment to protect civil
rights.

On the other hand, the legal theory advanced by the Tax Division seems to conflict with the Attorney General's view that the Department should discourage rather than encourage judicial activism and policymaking, except when clearly mandated by statute or the Constitution. The Attorney General has stated, as you know, that the Department would not deviate from its litigating policies simply to obtain an advantage in a particular case. There is a convincing argument against interpreting $170 to exclude private schools practicing racial discrimination:

1.

The statute was enacted during an era rampant with
racial discrimination. It seems unlikely that the
enacting Congress intended to endow courts with
authority to strip schools of tax exempt status upon
a finding that racial discrimination was no longer
nationally acceptable. Congress, as you know, tra-
ditionally has been most reluctant to divest itself
of authority over policies of taxation.

2.

3.

No substantial constitutional question would be
raised by permitting private schools practicing
racial discrimination to claim the exemption offered
by $170. The Supreme Court has ruled that granting
tax exempt status to churches or church property
does not violate the First Amendment, and that
offering institutions liquor licenses or similar
benefits that do not actively encourage private
race discrimination is constitutionally acceptable.
There is thus no need in these cases to strain the
interpretation of $170 to avoid a constitutional

encounter.

The consequences of accepting the Tax Division's
legal theory are daunting. It would support judicial
decisions denying tax exempt status to institutions
that did not accommodate the handicapped, the aged,

women,

and other groups currently favored in federal statutes on the ground that a tax exemption would be inconsistent with national policy. This exercise of judicial power would represent a sharp deviation from traditional congressional resistence to regulating comprehensively the affairs of nonprofit and other small entities.

The briefs in the Supreme Court are scheduled for filing in approximately one week, although it might be possible to obtain an extension. If you believe at the conclusion of the meeting that there is any merit to altering the Department's litigating position, then further consultation with the Attorney General and our client agency in the matter, the Internal Revenue Service, would be necessary.

SPECIAL ASSISTANT TO
THE ATTORNEY GENERAL

TAB B

Век

12/2/21

Be Bob Jones Univ.

I just

just ran across

the attached relevant statements in the Republican platform and Beagan / Bush position papers. I have sent capices

to Bruce.

Carolyn

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