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We think this principle is bound up with the enrollment of church schools-the vast majority of which are owned, operated, and maintained by local congregations.

Senator PACKWOOD. Part of the debate is going to be because of the tremendous antieducation bias that exists in this country. I am not sure where that springs from. There was a time in this country where there were no public schools in the sense that we understand public schools today. Public education was provided by church schools at public expense.

So we have come a long way from what the founding fathers saw about religion and whether or not there was some kind of connection, call it what you want.

Sir, the testimony has been good, and I appreciate everyone's patience.

We have one more witness, Dr. Allen.


Mr. ALLEN. I will be very brief in what I have to say and not repeat the previous testimony. I am Wayne Allen, chairman of the board of trustees, Briarcrest Baptist School System, Memphis, Tenn., the largest private school in the United States.

Our school will be a reviewable school. We have intervened in the law case in which this proposal has come forward. We are the only spokesman for private education in the case in which the Commissioner gave testimony that the regulation has come from.

If Briarcrest Baptist School was Catholic and not Baptist it would not be a reviewable school. If Briarcrest Baptist School was formed 17 years ago, rather than 7 years ago, it would not be a reviewable school. If Briarcrest Baptist School was located in New York City rather than Memphis, Tenn., it would not be a reviewable school. To be a reviewable school because of religious denomination, year of formation, or location is discriminatory. We will be a reviewable school. We may be one of the target schools in America because we are the largest school.

We have pursued every avenue that we know to recruit minority students and yet, in our community, the black leadership of the NAACP vigorously opposes any black student attending a private school.

You mentioned that we had such a mindset in our part of the country that is against private education, that there is no concept between private and public schools. They are working in cooperation with each other.

Senator PACKWOOD. Who is the spokesman for the NAACP?

Mr. ALLEN. Mrs. Maxine Smith Smith, Executive Director, NAACP.

Senator PACKWOOD. Because your schools discriminated especially, or because a black pastor would be a disgrace to his race because private schools are bad, period, whether they discriminate or not?

Mr. ALLEN. Her position is the same as the position referred to in the Internal Revenue procedure. The position referred to in the procedure is that any school formed during public school desegrega

tion is discriminatory and since discrimination is bad, the school should be destroyed without looking at the individual facts regarding each particular school situation.

Right now there is prejudice against private Christian schools located within the desegregating communities and this prejudice is bringing pressure on the black community to boycott these newly formed Christian schools. The Internal Revenue Service audited Briarcrest several years ago. They sent two agents to spend a week checking our admission policy. They interviewed black leadership in the city and asked what their opinions were about Briarcrest admissions policy and blacks attending private schools. One of the black pastors, Reverend James Netters, told the Internal Revenue Service agents that there was tremendous pressure on black families and students not to attend private schools.

The IRS is not asking for nondiscriminatory admission policies. The procedure does not determine whether your admission policy is nondiscriminatory. What they are asking is, what have your results been in recruiting black students.

What this committee must understand is that the school has no control over the results. We can make the effort, but the school cannot, unless you are going to pass a bill to have forced busing in private schools, you cannot make a black parent enroll his child in a private school.

What the parents of black children do is out of our control. Our school can do all within its power to recruit and to seek minority students. We have no way to force minority students to attend, because this procedure requires us.

In conclusion, the strong objections on the part of hundreds of thousands of citizens to the original proposed revenue procedure has caused a revision of the proposed procedure. This revision, however, is primarily cosmetic. The unfair, arbitrary, and discriminatory presumption of guilt remains.

The proposed procedure constitutes an unconstitutional attack upon religious education in the United States. The vast majority of the schools which would be affected by the proposed procedure are Christian, religious schools. Furthermore, the proposed procedure deliberately has excluded the majority of Catholic and Jewish schools and now aims its attack almost exclusively at Protestant schools-an especially invidious religious discrimination.

While the disastrous effects of busing on the public school systems of the Nation have no doubt contributed to the success of private schools since that practice began, it is totally unfair, arbitrary and wrong to presume that every private school created or expanded during this period has done so in order to escape racial integration. It is totally unconscionable to invoke punitive government actions against hundreds of thousands of Protestant Christians whose only motives are to provide their children with an excellent education in an acceptable moral atmosphere.

The existing Revenue Procedure 75-50 already requires tax exempt schools to pursue nondiscriminatory policies if they are to retain tax exemption. It contains an invitation to minorities to file a complaint against any exempt private school which discriminates in practice. There have been few, if any, complaints filed.

Even if the IRS should rightfully be engaged in shaping national social policies, its existing procedures are more than adequate to do


The proposed procedure will not open to minorities any school doors. The doors of the tax exempt schools are already wide open. The blacks refuse to attend such schools.

The proposed regulation will have one primary effect-to punish private schools for having come into existence subsequent to public school integration.

It should be totally, completely and finally abandoned.
Senator PACKWOOD. Thank you very much.

[The prepared statements of the preceding panel follow:]


My name is William Kelly, Superintendent of Christian Unified Schools of San Diego and board member of the Association of Christian Schools International. On behalf of the Association I thank you for the opportunity to be heard at this important congressional hearing. Our Association has 1,042 schools in the United States with a combined enrollment of 185,000 students. ACSI represents two types of Christian schools-both types having the same religious purpose. Eighty percent of our schools are operated by Evangelical Bible-believing churches who consider their Christian schools an integral part of their church ministry. Typically, these church operated schools function under the nonprofit corporation of their sponsoring church. It is therefore impossible for the IRS to deny the tax exemption of a church operated Christian school without denying the tax exemption of the entire sponsoring church congregation. Consequently, contributions in the form of tithes and offerings to the church that offers a school as a ministry to the community would not be tax deductible. The average size Christian school in our Association is 218 students. Most often the church congregation that operates a Christian school is several times larger than its school's student enrollment. If you permit the Internal Revenue Service to nullify the tax advantage of contributions to churches you will indeed engender the disfavor of a large segment of our society and of your voting constituency.

Twenty percent of the Christian schools in the Association of Christian Schools International are independent religious Christian schools formed by groups and boards of Christian parents whose sole purpose in doing so is to provide Christian school education for their youngsters. These schools are as religious in nature and purpose as the church operated schools. Like the church sponsored schools within our association these independent religious schools do not discriminate racially or denominationally. Their doors are open to parents of any race who want Christcentered education for their youngsters. Tax deductible contributions are even more significant to these independent religious schools because they have the additional financial burden of providing the property and buildings required by their students whereas a church sponsored school is most often housed within the educational structure of the sponsoring church. Tax deductible contributions to an independent religious school are critical in keeping the tuition within reach of average income parents who choose to provide Christian education for their children.

The schools I represent are religious educational institutions be they independent or church operated. In my view there is a profound difference between a tax exempt Christian school and a tax exempt private school. I am here as a knowledgeable witness to tell you that our Christian schools do not discriminate racially. Academically our students are performing, according to the Stanford Achievement Test, a year and two months ahead of public education and we educate our students at less than half the cost of tax supported schools. Interestingly enough the largest professional group among the parents who send their children to Christian schools are public school teachers and principals.

In my view, if this congressional committee wishes to encourage the Internal Revenue Service to impose a racial quota system on tax exempt private schools who do not have a religious purpose that is a decision that should be made entirely separate from the awesome decision to impose such regulations on religious educational institutions be they in the form of a church operated school or an independent religious school. The Internal Revenue Service has a right to impose a racial quota system on a Christian school, Catholic or Hebrew school only to the extent that the IRS has a right to racially balance a congregation of a church or synagog.

It, of course, does not have that right even though the church is tax exempt. Tax exemption is not a license for government regulation.

As you contemplate the issues in support of or opposition to the proposed revised IRS regulations pertaining to tax exempt private schools I urge you to consider the following:

(1) The U.S. Supreme Court has consistently held that religious schools are indeed religious and that the separation of church and state principle bars government from excessive entanglement with them. Any attempt to regulate private education in America should exclude religious educational institutions. A basic American principle requires that the church not impose itself upon the government and that the government not entangle itself with the church. It will be a sad day in American history if either the church or the state ever steps over that line.

(2) Christian schools would not exist but for their religious purpose.

(3) Although Christian religious schools and their churches exist apart from the government, Christian schools are among the best friends the government has. Christian schools save the government billions of tax dollars in relief from educating Christian school students. Christian schools teach their students that government and government leaders are of God and are to be highly regarded. Christian schools raise the literacy level of America by offering a quality of education that is above the national norm and most important, Christian schools enrich the moral character of American society.

I urge you not to be a party to any rule or regulation by any agency of government that would impede the progress of Christian schools. They are vital to the quality of life in America.


I am Arno Q. Weniger, Jr., and I speak as Executive Vice President of the American Association of Christian Schools which is comprised of almost 850 member schools across the country enrolling over 135,000 students. Our schools are located in 44 of our 50 states, and we have affiliated state chapters in 33 of these states. If present trends continue, the American Association of Christian Schools will have over 1,000 schools next year with an enrollment of over 175,000 students. The American Association of Christian Schools is comprised of Christian schools, the great majority of which, perhaps 95 percent, are affiliated, controlled, and directed by individual local churches. These schools are ministries of the local churches and are likewise administered by the deacons and pastors of the churches. Our schools are independent and autonomous. They seek to fellowship with the American Association of Christian Schools which provides services and information along with the promoting of Christian education across America. Our Association has no authority over any of our schools and therefore we are unable to speak directly for our schools. It must also be understood that these schools can only be looked at in the light of their relationship to the church. Almost without exception, the pastor of the church is the superintendent of the school. Often-times he teaches a class or two, preaches in the chapel, and gives direction to the staff of the school. Deacon boards are school boards and business on behalf of the school is conducted along with the other business of the church. These schools are without a doubt as religious and spiritual as any function of the church.

I have spoken in many of these schools, their state association meetings, and as well their regional conventions from Fairbanks, Alaska to Miami, Florida. From the tip of Maine to the shores of Northern California. I do not know of any school in our Association who excludes any racial group. In fact, our schools are mixed with children of all races. Admission to these church-schools is based upon spiritual standards rather than ethnic background. Children must be willing to accept not only the spiritual and moral standards of the schools but their parents must, as well, agree to its importance in order to maintain enrollment in these churchschools.

The parents of students enrolled in these Christian Schools are not only paying taxes in support of the public school system, but they are likewise paying tuition of considerable amount in order to see to it that their children are educated academically, morally, and spiritually. Our parents will continue to be willing to make a sacrifice for the sake of their children. Our schools do not accept government aid, refuse the Title Programs of the public school system, and wish to continue to be totally free and independent of bureaucratic control and funding.

Let me now speak concerning our opposition to the Revised Revenue Procedure released February 9, 1979. This opposition was delineated by letter to the Internal Revenue Service, voiced at their Hearings in December, reaffirmed in testimony

before the House Ways and Means Subcommittee on Oversight on February 21, 1979, and is once again given before this committee.

1. It is our firm belief that the Internal Revenue Service has no constitutional authority for these Revenue Procedures. The application of these procedures to "church-related and church-operated schools" is an abridgment of the First Amendment of the United States Constitution. In the light of the recent Supreme Court decision in NLRB v. CATHOLIC BISHOP OF CHICAGO, it is apparent that it is the right of church-related institutions to manage their own affairs. The values enshrined in the First Amendment plainly rank high "in the scale of our National values." 2. It is also our feeling that the IRS has no statutory authority to impose these Revenue Procedures upon our church-schools. In the words of William J. Lehrfeld, our legal counsel, "The Internal Revenue Service has no statutory authority to impose certain filing, recordkeeping notice procedures on churches which, as part of their ministry, happen to conduct an elementary or secondary school for the benefit of the children of it's congregation or others."

3. Inasmuch as our schools are ministries of our churches for the Internal Revenue Service to invoke these procedures upon our ministry; namely, our Christian school which meets Monday through Friday, leads us to believe that the government could also impose these sorts of restrictions upon our other ministries. If our day schools must meet a certain racial mix, why not our Sunday nursery, or our bus ministry, etc.

4. To deny tax exemption based upon the criteria of these Revenue Procedures would be to deny tax exemption to our churches. Our schools are not tax exempt in and of themselves, they are only tax exempt because of the tax exempt status of our churches. Our churches do not hold tax exempt status by virtue of governmental action, but hold that exempt status by its very nature. The Internal Revenue Service only recognizes that exempt status with the issuance of a letter of exemption. To deny that exemption based upon failure to meet these Revenue Procedures is a veiled threat to the church and is without a doubt an infringement on the free exercise of our religion.

5. If these Revenue Procedures were to continue to stand it would be the beginning of a great profusion of governmental entanglement with religion. Not only would the Internal Revenue Service no doubt have reason to proliferate this entanglement but as well other governmental agencies would do likewise.

6. These Revised Revenue Procedures have made an accommodation to certain classes of religious organizations and denied that exemption to others. Section 3.03(b) and 3.03(c)(6) exempt in essence Hebrew Day Schools, Moslem Schools and as well the Amish. Section 3.03(b) also makes accommodation for "a particular school which is part of a system of commonly supervised schools." With very few exceptions, only the Roman Catholic church operates a system of schools. The Revenue Procedures clearly give special status to these schools over other schools. It seems that it is the IRS feeling that those church-schools which are of a "long-standing practice of religion" or which are part of a "religious denomination" are the only ones that deserve any First Amendment protection because of special religious circumstances influencing student enrollment composition. Our schools are predominantly independent of any denomination, and the vast majority are operated as an inseparable ministry of the local church. Our schools are thoroughly religious. Every subject is based upon the Bible, and the student is taught that all truth comes from God. Many of our church schools are new and have recently been founded. The IRS is clearly guilty of discrimination against our independent church schools with the implementation of these Revised Revenue Procedures.

7. We are as well in opposition to these Revenue Procedures because of their subjective nature and the great amount of authority and latitude given to the Internal Revenue Service. It is clear to us, and we would hope as well to the government, that the Internal Revenue Service is hereby attempting to regulate bona fide churches and their ministries which they have established as an integral part of their religious purpose.

8. Inasmuch as the Supreme Court determined in REGENTS OF UNIVERSITY OF CALIFORNIA V. BAKKE, that the racial quota system in a state operated school was unconstitutional based upon the 5th & 14th Amendments, it would seem even more unconstitutional in a church-school in the light of the First Amendment. How the Internal Revenue Service, the courts, or this Senate Subcommittee can come to any other conclusion is beyond my comprehension.

In the light of our testimony of objection, may I state that we are not here today to quibble about inserting certain language in these proposals to make them more palatable to the Christian Schools of America. My forefathers, Baptists in Virginia, languished in jail until the establishment of that First Amendment which reads, "Congress shall make no law respecting the establishment of religion or prohibiting

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