Either of these choices, admission of non-Jews or refusal to admit Jewish applicants, would be a violation of Jewish religious principles, we submit. The proposed procedure would also limit the ability of a Jewish community to establish a new Jewish school in particular areas simply because the public schools desegregation plan was being implemented, even though Jewish religious principles require such schools to be established whenever practical. As we explained-well, in the interests of time, let me just paraphrase. In our previous testimony, we indicated that it is a policy of our organization to foster the establishment of the Jewish day school in any community when the population reached, the Jewish population in the community, reached 5,000 Jews. I say this in connection with the idea that this policy has absolutely-establishing Jewish schools-has absolutely no relationship to desegregation plans being implemented in the public schools. We also testified that, for historical reasons having absolutely nothing to do with the racial problems in the United States, there are few Jews among the minority populations in the United States. The number of Jewish blacks in the United States, by estimates we can gather, appear to be somewhere between 3,000 and 6,000; the number of orientals and American Indians and other minority groups who are Jewish is virtually zero. Thus, while Jewish law absolutely forbids any school to discriminate on the basis of race or skin color, and we know of no instance, no one in our organization knows of any instance in which a Jewish school has refused to accept a Jewish student because he, or she, is a member of any minority group, very few Jewish schools, practically speaking, in the United States, have, or could have, any blacks, orientals, or other minorities among their student body. For this reason, Mr. Chairman, as a general matter, we fail to this day to understand how any meaningful statistical inference could be drawn from the presence, or lack of, any appreciable members of minorities in particular schools, yet this is what the IRS has proposed to do. I think my time has run out. Senator BYRD. You mentioned that there are 3,000 blacks of the Jewish faith? Mr. RAPPS. I say the estimates we have been able to get. There is no scientific study. It goes nowhere beyond 6,000. We did a survey of various publications. Senator BYRD. How many persons in the United States are of the Jewish faith? Mr. RAPPS. Of the Jewish faith, I would say, as a guess, between 8 or 9 million. Senator BYRD. Eight or nine million with 6,000 being black? You would have a pretty tough time getting 20 percent in your schools, would you not? Mr. RAPPS. The interesting thing is we had suggested-we took a position in opposition to the numbers game, which we really cannot buy. We want to be particular in our comments. If a procedure of that sort is going to be imposed upon us, at the very least, the standard should be addressed to the Jewish black or minority population, not to the general population. This was brought to the attention of the IRS initially. They changed the regulation, but simply did not go far enough. Conceivably, at this time, our schools in certain circumstances-I think it is fair to say it is limited now to the changes they incorporated, but the fact is, conceptually at some point in time, some of our schools can be required to accept non-Jews in order to comply with the standard of 20 percent of the general minority population of a particular area, even though it would have no relationship to the actual numbers of black Jews or minority Jews. Senator BYRD. Thank you, sir. The next witness? STATEMENT OF CHARLES B. HIRSCH, EXECUTIVE SECRETARY SEVENTH-DAY ADVENTIST, K-12 SCHOOLS Mr. HIRSCH. The Seventh-day Adventist Church began operating its schools over a century ago and today is responsible for the second largest Protestant parochial school system in the United States, and the largest such system in the world. Seventh-day Adventist schools are not merely church related or church sponsored. They are truly church schools. They are an integral part of the religious mission of the church. Our schools would find it almost impossible to operate outside the church and the church would have a difficult time existing without its schools. In these church schools, the entire curriculum, including extracurricular activities, are enmeshed with the church's teachings and practices. Faculty and staff, and approximately 85 percent of the students are Seventh-day Adventists. The significant financial investment of the church and its members give evidence of a strong dedication and commitment to a program of church school education. IRS Commissioner Jerome Kurtz has stated that the IRS guideline and procedures deny tax exemption to private schools that discriminate in their admissions policy on the basis of race or ethnic origin. Church-related private schools are covered within this policy, as well as the churches that operate and control them. This is rather an inclusive statement with all types of ramifications for church-and-state affairs. In the same speech, Commissioner Kurtz also referred to Reynolds v. United States, 98 U.S. 145 (1879) where the Supreme Court of the United States found within the religious clauses of the first amendment both a freedom to believe and a freedom to act. It found that the former is absolute while the latter is not. There is an inherent danger in this interpretation which could eventually eliminate freedom of religious expression. For example, a person has the absolute freedom to believe in transubstantiation, but his freedom to express this belief through participation in the Mass could be readily curtailed if the government somehow concluded it was contrary to a compelling public interest. Since its hearings on the first proposed guidelines, I believe the IRS recognizes the complications in finding Amish blacks or Hispanics, or Hebrew blacks, to fill even minimum quotas. The question is who will be the final arbiter in determining what is possible or not possible? Senator BYRD. Thank you, Mr. Hirsch. STATEMENT OF GEORGE REED, GENERAL COUNSEL, U.S. Mr. REED. Thank you, Mr. Chairman, on behalf of the U.S. Catholic Conference, we wish to thank the subcommittee for the opportunity of commenting upon the proposed revenue procedure. At the outset, I wish to say that this revised procedure is more flexible than the original procedure. Nevertheless, we feel it is unnecessarily burdensome and it presents some critical constitutional issues which need more extended review. We have 10,000 elementary and secondary schools, representing about 70 percent of the student enrollment in that category. Consequently, we are definitely concerned. A profile of our school system indicates that we have a minority enrollment of 17.5 percent. That is about evenly divided between black student enrollment and Hispanic student enrollment, the balance being Asiatic and Indian students. In addition to this, about 85 percent of our dioceses, have established a procedure which precludes the transfer of public school students to our schools when their public school is subject to a desegregation order. We have had to go to court, and have gone to court, in order to enforce that policy. I would like to mention a new development which presents this whole issue in a new light. Last month, the Supreme Court of the United States, in the case of NLRB v. Catholic Bishop of Chicago, rendered a very important decision. It stated that administrative agencies cannot construe congressional statutes in a manner that gives rise to serious first amendment issues, unless there is a clear expression of Congressional intent. We submit that there is no clear expression of congressional intent in any of the history of section 501(c)(3) of the Internal Revenue Code to support the issuance of guidelines regulating the admissions and employment practices of church-related schools. This decision, with its basic rationale, in my opinion imposes on the IRS the duty to review this revised procedure in light of this new rationale by the court, in order that IRS may eliminate any unconstitutional aspects of the revised procedure. I have another major concern-while this procedure is more flexible than the first one, it is only more flexible because the public has an opportunity for comment. The Service in this particular situation was not required to provide opportunity to comment, but it did so. However, in many other instances directly effecting tax status of 501(c)(3) institutions, including the churches, IRS has published rulings without any opportunity for comment whatsoever. The Commissioner today made reference to Revenue Ruling 5231. If a school discriminates, the sponsoring church would lose its exemption. No opportunity was afforded for comment with respect to that ruling. There are other areas similar to this. I suggest that the Congress seriously consider the enactment of legislation which would provide that the Internal Revenue Service, whenever it intends to publish a ruling which has the potential of affecting the tax status of a 501(c)(3) institution, should be required to comply with the Administrative Procedures Act. That is, there should be a notice of rulemaking and opportunity for comment. Thank you very much, Mr. Chairman. During the recess of this committee, I spent 11⁄2 hours on the steps of the Capitol with the students from the Liberty Baptist College of Lynchburg, Va. They had an "America Day Rally" there. They had 12,000 persons present, as estimated by the police. Now, I tried to count in the choir whether there was a 20 percent racial of black and white. I could not figure whether they quite did or not; I do not think they did. I assume that most of the persons who attend Liberty Baptist College are Baptists and attend because they want to go to a Baptist college. I assume that most of those who attend the Hebrew day schools are Jewish. It seems natural that they would like to go to such a school. I assume most of the Catholic schools are predominantly Catholics, because that is what the Catholics would like to do. You mentioned 85 percent of the students at the Seventh-day Adventist schools are members of that faith. We are getting into problems by setting goals or quotas for religious institutions. I think your testimony today has been most helpful. Mr. Lamborn stated that he felt the Government should not assume guilt when there is no evidence of guilt. Certainly I think that is a reasonable view to be held by an American citizen. You mentioned, Mr. Lamborn, that you feel that the Government should direct attention to schools which are discriminating but not to harass schools which are not discriminating. To me, that seems to be an American doctrine. I think it is well-established. It is certainly well-established by what each of you have said, and what other witnesses have said. That no one here is defending discrimination; that is not the point. The point is to give authority to the Internal Revenue Department to act in cases where there is discrimination. But what you gentlemen are objecting to, on behalf of those whom you represent, as I understand it, is the sort of blanket viewpoint that everybody is discriminating unless you prove they are not discriminating. Thank you very much. [The prepared statements of the preceding panel follow:] TESTIMONY OF ROBERT L. LAMBORN, EXECUTIVE DIRECTOR, COUNCIL FOR AMERICAN PRIVATE EDUCATION SUMMARY OF TESTIMONY The Council for American Private Education (CAPE) is a coalition of 15 national organizations serving private schools (K-12) which enroll approximately 90 percent of the children attending private schools. CAPE, its member organizations, and the schools they serve actively support a policy of racial non-discrimination. We endorse the civil rights purposes of the proposed revenue procedure and believe that the taxexempt status should be denied to private schools which in fact discriminate on the grounds of race. We believe that as a body private schools should be judged by their positive record on civil rights matters, not by the performance of the relatively quite small proportion of the private schools which may in fact operate in a racially discriminatory way. We believe, also, that in drafting revenue procedures relating to tax-exempt private schools great care should be taken to focus on schools which are in fact discriminatory and to protect those which are in fact nondiscriminatory in their practices. The proposed procedure of February 9, 1979, clearly reflects the serious efforts IRS has made to be responsive to those concerns. There remain, we believe several matters of principle which should be addressed, as well as a number of points which should be clarified. Our principal specific points in our full testimony are those related to the following sections: Sec. 2.01 and 2.02 (The procedure should reaffirm that a religious school may select its students from its religious membership if the denomination is non-distriminatory); Sec. 3.03(c) (There should be no presumptions of discrimination-all actions should be based on a finding based on all the facts): Sec. 3.04 (The procedure should be further adapted to the fundamental differences between the character of the communities served by public and private schools); Sec. 4.03(1) (Any evaluation of a school's good intent should be realistic in terms of the school's resources and no school of good intent should be faced with unmanageable burdens of defense); and Sec. 5.03, 5.04, and Sec. 7 (No adverse actions against the deductibility of contributions should be initiated prior to a final determination of fact). I am Robert L. Lamborn, Executive Director of the Council for American Private Education (CAPE). CAPE is a coalition of 15 national organizations serving approximately 15,000 schools (K-12), enrolling approximately 4.2 million children or approximately 90 percent of those attending private Schools. CAPE and its member organizations are non-profit. They and their member schools actively support a policy of non-discrimination on grounds of race, color, and national origin. The membership: The American Lutheran Church, The American Montessori Society, Association of Evangelical Lutheran Churches, Association of Military Colleges and Schools of the U. S., Christian Schools International, Friends Council on Education, Lutheran Church-Missouri Synod, National Association of Episcopal Schools, National Association of Independent Schools, National Association of Private Schools for Exceptional Children, National Catholic Educational Association, National Society for Hebrew Day Schools, Seventh-day Adventist Board of Education, K-12, Solomon Schechter Day School Association, and United States Catholic Conference. We wish to underscore at the outset of our testimony that CAPE endorses the civil rights purposes of the proposed revenue procedure and that the vast majority of private schools are conducted in a racially non-discriminatory manner. One evidence of the degree of CAPE's commitment to this purpose is that at both the Appeals and Supreme Court levels we entered amicus briefs in support of the black parents in Runyon v. McCrary, a suit which was found in favor of the parents and against the schools involved. We believe that as a body private schools should be judged by their positive record on civil rights matters, not by the performance of the relatively quite small proportion of the private schools which may in fact operate in a racially discriminatory way. We believe, also, that in drafting revenue procedures relating to tax-exempt private schools great care should be taken to focus on schools which are in fact discriminatory and to protect those which are in fact nondiscriminatory in their practices. We welcome the invitation to comment on the Proposed Revenue Procedure on Tax-Exempt Schools issued February 9, 1979. We consider the matter to be of major importance to the future of America's private schools and to American education. CAPE appreciates the careful attention which IRS Commissioner Kurtz and his associates have given to the concerns which have been expressed by private school representatives with regard to the proposed procedure of August 22, 1978. The proposed procedure of February 9, 1979, clearly reflects the serious efforts IRS has made to be responsive to those concerns. There remain, we believe, several matters of principle which should be addressed, as well as a number of points which should be clarified. Sec. 2.01 and 2.02-In reaffirming the application of racial non-discrimination to religious schools (2.01), the IRS should at the same time reaffirm that a religious school may select its students from membership in the religious denomination if the latter is non-discriminatory (see Rev. Proc. 75-50, Sec. 3.03), and that this preference or priority does not constitute racial discrimination. The proposed revenue procedure does not affirmatively state this principle which is fundamental to the application of the racial non-discrimination policy to religious schools. (This will be our only comment on the fundamental church-state issues which are raised by the proposed procedure. Others will address the issues as they feel it appropriate.) Sec. 3.03(a)-It would be helpful to clarify the procedure for determining the dates which will establish the limits of the period of the public school desegregation process. At what point does "implementation" start and at what point has "substantial implementation" been achieved? How and by whom are these judgments made |